NRS: CHAPTER 125C - CUSTODY AND VISITATION

[Rev. 1/16/2013 10:47:55 AM--2012R2]

CHAPTER 125C - CUSTODY AND VISITATION

VISITATION

NRS 125C.010 Order awarding visitation rights must define rights with particularity and specify habitual residence of child.

NRS 125C.020 Rights of noncustodial parent: Additional visits to compensate for wrongful deprivation of right to visit.

NRS 125C.030 Imprisonment for contempt for failure to comply with judgment ordering additional visit.

NRS 125C.040 Imprisonment for contempt: Violation of condition; failure to return when required.

NRS 125C.050 Petition for right of visitation for certain relatives and other persons.

CUSTODY AND VISITATION ORDERS CONCERNING CHILDREN OF MEMBERS OF MILITARY

NRS 125C.100 Definitions.

NRS 125C.105 “Custody or visitation order” defined.

NRS 125C.110 “Deployment” defined.

NRS 125C.115 “Member of the military” defined.

NRS 125C.120 “Parent” defined.

NRS 125C.125 “Parent who received orders for deployment” defined.

NRS 125C.130 “Temporary duty” defined.

NRS 125C.135 Provisions not applicable to order for protection against domestic violence.

NRS 125C.140 Jurisdiction retained during deployment of parent; deployment not basis to assert inconvenient forum.

NRS 125C.145 Court to hold expedited hearing or allow alternative means of presenting testimony and evidence in certain circumstances.

NRS 125C.150 Deployment does not warrant permanent modification of order.

NRS 125C.155 Expedited hearing to issue temporary order.

NRS 125C.160 Temporary modification of order to accommodate deployment of parent; requirements of temporary order.

NRS 125C.165 Expiration of temporary order upon completion of parent’s deployment; exception.

NRS 125C.170 Delegation of visitation rights to family member of parent to be deployed; termination of such rights; effect on ability of family member to seek separate visitation order.

NRS 125C.175 Limitation on issuance of final order modifying terms of existing order when parent receives mandatory order for deployment.

NRS 125C.180 Costs and attorney’s fees.

NRS 125C.185 Requirement for parents to cooperate and provide information to each other.

MISCELLANEOUS PROVISIONS

NRS 125C.200 Consent required from noncustodial parent to remove child from State; permission from court; change of custody.

NRS 125C.210 Child conceived as result of sexual assault: Rights of natural father convicted of sexual assault; rights when father is spouse of victim; rebuttable presumption upon divorce.

NRS 125C.220 Presumptions concerning custody and visitation when parent of child is convicted of first degree murder of other parent of child.

NRS 125C.230 Presumption concerning custody when court determines that parent or other person seeking custody of child is perpetrator of domestic violence.

NRS 125C.240 Presumption concerning custody when court determines that parent or other person seeking custody of child has committed act of abduction against child or any other child.

_________

VISITATION

NRS 125C.010 Order awarding visitation rights must define rights with particularity and specify habitual residence of child.

1. Any order awarding a party a right of visitation of a minor child must:

(a) Define that right with sufficient particularity to ensure that the rights of the parties can be properly enforced and that the best interest of the child is achieved; and

(b) Specify that the State of Nevada or the state where the child resides within the United States of America is the habitual residence of the child.

Ê The order must include all specific times and other terms of the right of visitation.

2. As used in this section, “sufficient particularity” means a statement of the rights in absolute terms and not by the use of the term “reasonable” or other similar term which is susceptible to different interpretations by the parties.

(Added to NRS by 1993, 2137; A 1995, 1493, 2289)—(Substituted in revision for NRS 125A.290)

NRS 125C.020 Rights of noncustodial parent: Additional visits to compensate for wrongful deprivation of right to visit.

1. In a dispute concerning the rights of a noncustodial parent to visit his or her child, the court may, if it finds that the noncustodial parent is being wrongfully deprived of his or her right to visit, enter a judgment ordering the custodial parent to permit additional visits to compensate for the visit of which the noncustodial parent was deprived.

2. An additional visit must be:

(a) Of the same type and duration as the wrongfully denied visit;

(b) Taken within 1 year after the wrongfully denied visit; and

3. The noncustodial parent must give the court and the custodial parent written notice of his or her intention to make the additional visit at least 7 days before the proposed visit if it is to be on a weekday or weekend and at least 30 days before the proposed visit if it is to be on a holiday or vacation.

(Added to NRS by 1985, 1892)—(Substituted in revision for NRS 125A.300)

NRS 125C.030 Imprisonment for contempt for failure to comply with judgment ordering additional visit.

1. A custodial parent who fails to comply with a judgment ordering an additional visit may, upon a judgment of the court, be found guilty of contempt and sentenced to imprisonment in the county jail. During the period of imprisonment, the court may authorize his or her temporary release from confinement during such hours and under such supervision as the court determines are necessary to allow the custodial parent to go to and return from his or her place of employment.

2. A custodial parent imprisoned for contempt pursuant to subsection 1 must be released from the jail if the court has reasonable cause to believe that the custodial parent will comply with the order for the additional visit.

(Added to NRS by 1985, 1892)—(Substituted in revision for NRS 125A.310)

NRS 125C.040 Imprisonment for contempt: Violation of condition; failure to return when required.

1. If a custodial parent is imprisoned for contempt pursuant to NRS 125C.030 and violates any condition of that imprisonment, the court may:

(a) Require that the custodial parent be confined to the county jail for the remaining period of his or her sentence; and

(b) Deny the custodial parent the privilege of a temporary release from confinement for his or her employment.

2. A custodial parent, imprisoned for contempt, who fails to return to the jail at the time required by the court after being temporarily released from confinement for his or her employment, may be deemed to have escaped from custody and, if so, the custodial parent is guilty of a misdemeanor.

(Added to NRS by 1985, 1892)—(Substituted in revision for NRS 125A.320)

NRS 125C.050 Petition for right of visitation for certain relatives and other persons.

1. Except as otherwise provided in this section, if a parent of an unmarried minor child:

(a) Is deceased;

(b) Is divorced or separated from the parent who has custody of the child;

(c) Has never been legally married to the other parent of the child, but cohabitated with the other parent and is deceased or is separated from the other parent; or

(d) Has relinquished his or her parental rights or his or her parental rights have been terminated,

Ê the district court in the county in which the child resides may grant to the great-grandparents and grandparents of the child and to other children of either parent of the child a reasonable right to visit the child during the child’s minority.

2. If the child has resided with a person with whom the child has established a meaningful relationship, the district court in the county in which the child resides also may grant to that person a reasonable right to visit the child during the child’s minority, regardless of whether the person is related to the child.

3. A party may seek a reasonable right to visit the child during the child’s minority pursuant to subsection 1 or 2 only if a parent of the child has denied or unreasonably restricted visits with the child.

4. If a parent of the child has denied or unreasonably restricted visits with the child, there is a rebuttable presumption that the granting of a right to visitation to a party seeking visitation is not in the best interests of the child. To rebut this presumption, the party seeking visitation must prove by clear and convincing evidence that it is in the best interests of the child to grant visitation.

5. The court may grant a party seeking visitation pursuant to subsection 1 or 2 a reasonable right to visit the child during the child’s minority only if the court finds that the party seeking visitation has rebutted the presumption established in subsection 4.

6. In determining whether the party seeking visitation has rebutted the presumption established in subsection 4, the court shall consider:

(a) The love, affection and other emotional ties existing between the party seeking visitation and the child.

(b) The capacity and disposition of the party seeking visitation to:

(1) Give the child love, affection and guidance and serve as a role model to the child;

(2) Cooperate in providing the child with food, clothing and other material needs during visitation; and

(3) Cooperate in providing the child with health care or alternative care recognized and permitted under the laws of this State in lieu of health care.

(c) The prior relationship between the child and the party seeking visitation, including, without limitation, whether the child resided with the party seeking visitation and whether the child was included in holidays and family gatherings with the party seeking visitation.

(d) The moral fitness of the party seeking visitation.

(e) The mental and physical health of the party seeking visitation.

(f) The reasonable preference of the child, if the child has a preference, and if the child is determined to be of sufficient maturity to express a preference.

(g) The willingness and ability of the party seeking visitation to facilitate and encourage a close and continuing relationship between the child and the parent or parents of the child as well as with other relatives of the child.

(h) The medical and other needs of the child related to health as affected by the visitation.

(i) The support provided by the party seeking visitation, including, without limitation, whether the party has contributed to the financial support of the child.

(j) Any other factor arising solely from the facts and circumstances of the particular dispute that specifically pertains to the need for granting a right to visitation pursuant to subsection 1 or 2 against the wishes of a parent of the child.

7. If the parental rights of either or both natural parents of a child are relinquished or terminated, and the child is placed in the custody of a public agency or a private agency licensed to place children in homes, the district court in the county in which the child resides may grant to the great-grandparents and grandparents of the child and to other children of either parent of the child a reasonable right to visit the child during the child’s minority if a petition therefor is filed with the court before the date on which the parental rights are relinquished or terminated. In determining whether to grant this right to a party seeking visitation, the court must find, by a preponderance of the evidence, that the visits would be in the best interests of the child in light of the considerations set forth in paragraphs (a) to (i), inclusive, of subsection 6.

8. Rights to visit a child may be granted:

(a) In a divorce decree;

(b) In an order of separate maintenance; or

(1) After a divorce or separation or after the death of a parent, or upon the relinquishment or termination of a parental right;

(2) If the parents of the child were not legally married and were cohabitating, after the death of a parent or after the separation of the parents of the child; or

(3) If the petition is based on the provisions of subsection 2, after the eligible person ceases to reside with the child.

9. If a court terminates the parental rights of a parent who is divorced or separated, any rights previously granted pursuant to subsection 1 also must be terminated, unless the court finds, by a preponderance of the evidence, that visits by those persons would be in the best interests of the child.

10. For the purposes of this section, “separation” means:

(a) A legal separation or any other separation of a married couple if the couple has lived separate and apart for 30 days or more and has no present intention of resuming a marital relationship; or

(b) If a couple was not legally married but cohabitating, a separation of the couple if the couple has lived separate and apart for 30 days or more and has no present intention of resuming cohabitation or entering into a marital relationship.

(Added to NRS by 1979, 326; A 1985, 586; 1987, 1193; 1991, 1176; 1999, 726; 2001, 2712)

CUSTODY AND VISITATION ORDERS CONCERNING CHILDREN OF MEMBERS OF MILITARY

NRS 125C.100 Definitions. As used in NRS 125C.100 to 125C.185, inclusive, unless the context otherwise requires, the words and terms defined in NRS 125C.105 to 125C.130, inclusive, have the meanings ascribed to them in those sections.

(Added to NRS by 2011, 796)

NRS 125C.105 “Custody or visitation order” defined. “Custody or visitation order” means:

1. A judgment, decree or order issued by a court of competent jurisdiction in this State which provides for custody or visitation with respect to a child; and

2. A judgment, decree or order issued by a court of another state which provides for custody or visitation with respect to a child if the judgment, decree or order has been registered in this State pursuant to NRS 125A.465.

(Added to NRS by 2011, 796)

NRS 125C.110 “Deployment” defined. “Deployment” means the transfer or reassignment of a member of the military, unaccompanied by any family member, on active duty status in support of combat or another military operation, including, without limitation, temporary duty. The term does not include annual training of a reserve component of the Armed Forces of the United States or of the National Guard.

(Added to NRS by 2011, 796)

NRS 125C.115 “Member of the military” defined. “Member of the military” means a person who is presently serving in the Armed Forces of the United States, a reserve component thereof or the National Guard.

(Added to NRS by 2011, 797)

NRS 125C.120 “Parent” defined. “Parent” means a parent or legal guardian of a child under the age of 18 years.

(Added to NRS by 2011, 797)

NRS 125C.125 “Parent who received orders for deployment” defined. “Parent who received orders for deployment” means a parent who has received mandatory written orders for deployment and who is awaiting deployment or has been deployed pursuant to those orders.

(Added to NRS by 2011, 797)

NRS 125C.130 “Temporary duty” defined. “Temporary duty” means the transfer of a member of the military, unaccompanied by any family member, from a military base to a different location, including, without limitation, another military base, for a limited time to accomplish training or to assist in the performance of a combat mission.

(Added to NRS by 2011, 797)

NRS 125C.135 Provisions not applicable to order for protection against domestic violence. The provisions of NRS 125C.100 to 125C.185, inclusive, do not apply to any custody or visitation arrangement requested in a verified application for a temporary or extended order for protection against domestic violence filed pursuant to NRS 33.020.

(Added to NRS by 2011, 799)

NRS 125C.140 Jurisdiction retained during deployment of parent; deployment not basis to assert inconvenient forum.

1. If a court in this State has issued a custody or visitation order, the absence of a child from this State during the deployment of a parent shall be deemed a temporary absence for the purposes of NRS 125A.085 and 125A.135 and this State retains exclusive, continuing jurisdiction as provided in NRS 125A.315.

2. The deployment of a parent may not be used as a basis to assert the issue of inconvenient forum pursuant to NRS 125A.365.

(Added to NRS by 2011, 798)

NRS 125C.145 Court to hold expedited hearing or allow alternative means of presenting testimony and evidence in certain circumstances.

1. If the military duties of a parent who received orders for deployment have a material effect on the ability, or anticipated ability, of the parent to appear in person at a regularly scheduled hearing concerning any custody or visitation matters, the court shall, upon a motion of that parent and for good cause shown:

(a) Hold an expedited hearing;

(b) Allow the parent who received orders for deployment to present testimony and evidence by affidavit or electronic means; or

(c) Both hold an expedited hearing pursuant to paragraph (a) and allow testimony and evidence to be presented pursuant to paragraph (b).

2. As used in this section, “electronic means” includes, without limitation, telephone, videoconference or the Internet.

(Added to NRS by 2011, 798)

NRS 125C.150 Deployment does not warrant permanent modification of order. Deployment or the potential for future deployment must not, by itself, constitute a substantial change in circumstances sufficient to warrant a permanent modification of a custody or visitation order.

(Added to NRS by 2011, 797)

NRS 125C.155 Expedited hearing to issue temporary order. If a custody or visitation order has not been issued and a parent’s deployment is imminent, the court shall, upon a motion of either parent, hold an expedited hearing for the purpose of issuing a temporary order establishing the custody and visitation arrangement in accordance with NRS 125C.100 to 125C.185, inclusive.

(Added to NRS by 2011, 798)

NRS 125C.160 Temporary modification of order to accommodate deployment of parent; requirements of temporary order.

1. The court may temporarily modify a custody or visitation order to reasonably accommodate the deployment of a parent. Any such modification by the court of a custody or visitation order shall be deemed a temporary order.

2. A temporary order issued pursuant to subsection 1 must:

(a) Unless the court determines it is not in the best interest of the child, grant the parent who received orders for deployment reasonable custody or visitation during periods of approved military leave if the existing custody or visitation order granted that parent custody or visitation before deployment;

(b) Include any restrictions concerning custody or visitation set forth in the existing custody or visitation order;

(d) Require the other parent to provide the court and the parent who received orders for deployment with written notice of any change of his or her address or telephone number as soon as practicable but not later than 30 days after such change.

3. In issuing a temporary order pursuant to subsection 1, the court shall consider issuing any such appropriate temporary order as will ensure the ability of the parent who received orders for deployment to maintain frequent and continuing contact with the child by means that are reasonably available.

(Added to NRS by 2011, 797)

NRS 125C.165 Expiration of temporary order upon completion of parent’s deployment; exception.

1. Except as otherwise provided in subsection 2, a temporary order issued pursuant to NRS 125C.160 expires by operation of law upon the completion of the parent’s deployment and the previous custody or visitation order is reinstated.

2. The court may, upon a motion alleging immediate danger of irreparable harm to the child, hold an expedited hearing concerning custody or visitation upon the completion of the parent’s deployment.

(Added to NRS by 2011, 797)

NRS 125C.170 Delegation of visitation rights to family member of parent to be deployed; termination of such rights; effect on ability of family member to seek separate visitation order.

1. Upon a motion by the parent who received orders for deployment, the court may delegate his or her visitation rights, or a portion of those rights, to a family member of that parent who has a substantial relationship with the child if the court determines that such delegated visitation is in the best interest of the child.

2. In determining whether visitation rights should be delegated to a family member pursuant to subsection 1, the court shall consider the factors set forth in paragraphs (a) to (i), inclusive, of subsection 6 of NRS 125C.050.

3. Any visitation rights delegated to a family member pursuant to subsection 1 terminate upon:

(a) The expiration of a temporary order pursuant to NRS 125C.165; or

(b) A showing that the delegated visitation is no longer in the best interest of the child.

4. Nothing in this section increases the authority of a family member who is delegated visitation rights pursuant to subsection 1 to seek separate visitation rights of the child pursuant to NRS 125C.050.

(Added to NRS by 2011, 798)

NRS 125C.175 Limitation on issuance of final order modifying terms of existing order when parent receives mandatory order for deployment.

1. Except as otherwise provided in subsection 2, if a parent who is a member of the military and who has been awarded sole or joint custody or visitation of a child receives mandatory written orders for deployment, the court shall not enter a final order modifying the terms of the existing custody or visitation order until 90 days after the termination of the parent’s deployment.

2. If the matter was fully adjudicated by a court before the parent’s deployment, the court may enter such a final order at any time.

(Added to NRS by 2011, 797)

NRS 125C.180 Costs and attorney’s fees. In making a determination pursuant to NRS 125C.100 to 125C.185, inclusive, a court may award costs and reasonable attorney’s fees against any parent:

1. Who the court determines caused unreasonable delays;

2. Who failed to provide any information required pursuant to NRS 125C.100 to 125C.185, inclusive; and

3. In such other circumstances as the court deems proper.

(Added to NRS by 2011, 799)

NRS 125C.185 Requirement for parents to cooperate and provide information to each other.

1. If military necessity precludes court adjudication before deployment, the parent who received orders for deployment and the other parent shall cooperate with and provide information to each other in an effort to reach a mutually agreeable resolution with regard to custody and visitation matters.

2. Except as otherwise provided in this subsection, the parent who received orders for deployment shall, within 10 days after receiving the orders, provide a copy of the orders to the other parent. If the date of deployment is less than 10 days after receipt of the orders, a copy of the orders must be provided immediately to the other parent.

(Added to NRS by 2011, 798)

MISCELLANEOUS PROVISIONS

NRS 125C.200 Consent required from noncustodial parent to remove child from State; permission from court; change of custody. If custody has been established and the custodial parent intends to move his or her residence to a place outside of this State and to take the child with him or her, the custodial parent must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before leaving this State with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the noncustodial parent.

(Added to NRS by 1987, 1444; A 1999, 737)—(Substituted in revision for NRS 125A.350)

NRS 125C.210 Child conceived as result of sexual assault: Rights of natural father convicted of sexual assault; rights when father is spouse of victim; rebuttable presumption upon divorce.

1. Except as otherwise provided in subsection 2, if a child is conceived as the result of a sexual assault and the person convicted of the sexual assault is the natural father of the child, the person has no right to custody of or visitation with the child unless the natural mother or legal guardian consents thereto and it is in the best interest of the child.

2. The provisions of subsection 1 do not apply if the person convicted of the sexual assault is the spouse of the victim at the time of the sexual assault. If the persons later divorce, the conviction of sexual assault creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the sexual assault is not in the best interest of the child. The court shall set forth findings that any custody or visitation arrangement ordered by the court adequately protects the child and the victim of the sexual assault.

(Added to NRS by 1993, 105; A 1995, 331)—(Substituted in revision for NRS 125A.360)

NRS 125C.220 Presumptions concerning custody and visitation when parent of child is convicted of first degree murder of other parent of child.

1. The conviction of the parent of a child for murder of the first degree of the other parent of the child creates a rebuttable presumption that sole or joint custody of the child by the convicted parent is not in the best interest of the child. The rebuttable presumption may be overcome only if:

(a) The court determines that:

(1) There is no other suitable guardian for the child;

(2) The convicted parent is a suitable guardian for the child; and

(3) The health, safety and welfare of the child are not at risk; or

(b) The child is of suitable age to signify his or her assent and assents to the order of the court awarding sole or joint custody of the child to the convicted parent.

2. The conviction of the parent of a child for murder of the first degree of the other parent of the child creates a rebuttable presumption that rights to visitation with the child are not in the best interest of the child and must not be granted if custody is not granted pursuant to subsection 1. The rebuttable presumption may be overcome only if:

(a) The court determines that:

(1) The health, safety and welfare of the child are not at risk; and

(2) It will be beneficial for the child to have visitations with the convicted parent; or

(b) The child is of suitable age to signify his or her assent and assents to the order of the court awarding rights to visitation with the child to the convicted parent.

3. Until the court makes a determination pursuant to this section, no person may bring the child into the presence of the convicted parent without the consent of the legal guardian or custodian of the child.

(Added to NRS by 1999, 742; A 1999, 2975)

NRS 125C.230 Presumption concerning custody when court determines that parent or other person seeking custody of child is perpetrator of domestic violence.

1. Except as otherwise provided in NRS 125C.210 and 125C.220, a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody of a child has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint custody of the child by the perpetrator of the domestic violence is not in the best interest of the child. Upon making such a determination, the court shall set forth:

(a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and

(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child.

2. If after an evidentiary hearing held pursuant to subsection 1 the court determines that more than one party has engaged in acts of domestic violence, it shall, if possible, determine which person was the primary physical aggressor. In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider:

(a) All prior acts of domestic violence involving any of the parties;

(b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence;

(d) Whether, during the prior acts, one of the parties acted in self-defense; and

(e) Any other factors that the court deems relevant to the determination.

Ê In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies to each of the parties. If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 1 applies only to the party determined by the court to be the primary physical aggressor.

3. As used in this section, “domestic violence” means the commission of any act described in NRS 33.018.

(Added to NRS by 1999, 742)

NRS 125C.240 Presumption concerning custody when court determines that parent or other person seeking custody of child has committed act of abduction against child or any other child.

1. A determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking custody of a child has committed any act of abduction against the child or any other child creates a rebuttable presumption that sole or joint custody or unsupervised visitation of the child by the perpetrator of the abduction is not in the best interest of the child. If the parent or other person seeking custody does not rebut the presumption, the court shall not enter an order for sole or joint custody or unsupervised visitation of the child by the perpetrator and the court shall set forth:

(a) Findings of fact that support the determination that one or more acts of abduction occurred; and

(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other person from whom the child was abducted.

2. For purposes of subsection 1, any of the following acts constitute conclusive evidence that an act of abduction occurred:

(a) A conviction of the defendant of any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct;

(b) A plea of guilty or nolo contendere by the defendant to any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct; or

(c) An admission by the defendant to the court of the facts contained in the charging document alleging a violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.

3. If, after a court enters a final order concerning custody of the child, a magistrate determines there is probable cause to believe that an act of abduction has been committed against the child or any other child and that a person who has been awarded sole or joint custody or unsupervised visitation of the child has committed the act, the court shall, upon a motion to modify the order concerning custody, reconsider the previous order concerning custody pursuant to subsections 1 and 2.

4. As used in this section, “abduction” means the commission of an act described in NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.

(Added to NRS by 2009, 225)