Elvis and Michelle divorced, but not before they made a kid. That kid then became the topic of much dispute between them, to the point that their case went before the Nevada Supreme Court.
Anyway, part of the problem was that their family court judge did not get things right. It appears that the Supreme Court was more critical of the Family District Court Judge than of the parents.
What happened was, when Elvis and Michelle divorced, they agreed to joint physical custody, which most often means that they would split the kid in half—ok, not the kid, but the time they each had with the kid. Because of this arrangement, it was decided that both parents made about the same amount of money, so neither had to pay child support to the other parent.
Turns out that Elvis was only spending two days a week with the kid—and not really two days because he usually dumped the kid with his parents since he had to work. Michelle was not happy. Here she was stuck with the kid for five days and not getting child support.
So, she went back to court to argue that she ought to have primary custody since it already felt like this was the situation anyway. She claimed that she had “de facto” primary custody, so the court ought to just go ahead and call it what it was, oh, and award her child support too.
Well, the judge didn’t really want to do her job, so she told the parents that they ought to go to mediation and figure it out for themselves. Mediation didn’t work. Elvis and Michelle could not agree on the amount of time, I hope because of work schedules and not because they both didn’t want to spend time with the kid.
The judge was then forced to take a stance. She told the parents that they would have to split the kid in half. She also ordered that neither would have to pay child support. She explained that she believed that this was the arrangement they intended when they originally were divorced. She drafted an Order that did not explain all of her reasoning. Michelle was unhappy. She had thought the judge was out to get her so she attempted to have the judge recused, or removed. Didn’t work.
Michelle appealed to the Supreme Court and the Supreme Court pretty much told the lower court judge that her Order was terribly written and, oh, her judgment was a bit off. But, we must be fair to the judge because most other judges would have probably ruled the same way based on Nevada law. You see, most of the time “joint physical custody” has meant equal time share. The Supreme Court decided that this would no longer be so.
Now, parents could have joint physical custody AND unequal time share. Our black-robed justices feel that it is not so much the exact equal amount of time that ought to be considered that counts for joint custody, but the quality of the time. From now on, then, you have joint custody and unequal time.
But what about child support? Well, the justices said that the lower court judge got that wrong too. What she should have done was make the parent who has less time pay the other parent an amount that compensates for the difference in time so that the child gets pretty much the same standard of living from both parents. It’s all about the “child’s best interests.”
There you have it, unequal time share used to pretty much mean that one parent would have primary custody and the other parent visitation, but now the unequal time is just one factor in that determination and no longer the controlling factor.
Rivero v. Rivero, 195 P.3d 328 (Nev., 2008).
If you have any questions or need help with a custody issue, please visit my website and give me a call, or send me an e-mail.
Copyright: August 24, 2009
By: Anthony Wright, JD