Leslie J. Shaw is the founder and owner of the the Law Offices of Leslie J. Shaw in Reno, Nevada. With the experience and knowledge to handle all kinds of divorce and family law disputes including litigation, property division, child custody and spousal support, Leslie is certified to practice family law in both California and Nevada. This podcast explores the topic of child custody in California and Nevada, and answers questions regarding gender bias, parenting plans, and how child support is calculated in the two states.
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Leslie J. Shaw is a divorce attorney located in Reno, Nevada with over 40 years of experience as a lawyer. Practicing law in both Nevada and California, Leslie has extensive experience litigating complex divorce and can serve clients across all areas of family law.
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Read the Transcript of this Podcast Below.
Child Custody in Nevada and California
Diana Shepherd: Leslie, is there a difference between legal custody and physical custody in California and Nevada, or are they the same thing?
Leslie J. Shaw: There is a difference. Legally, custody is decision making, that’s the power of parents to decide things such as health, education and welfare issues for their minor children, whereas physical custody is more of a residential schedule. Where is the child going to sleep on a certain day, where will the child’s clothes be hanging?
So, the distinction is really more between decision making and scheduling. Now in California and Nevada, where I practice, there are some subtleties of distinction. For the purposes of our current discussion, we can accept that they’re philosophically very, very close and essentially the same.
If the children split their time between two homes, is it always 50/50? What are the most common types of arrangements for children’s living situations post divorce?
There is no common or more frequent custodial arrangement than any other. By way of example while California has a guideline for setting child support and there’s some software programs that assist in setting that support, and some of those programs default to a visiting parent having 20% parenting time, that’s really a software function. More often than not the parenting time can be defined by either court order or by party’s agreement to be shared, but not necessarily equal time.
I would suggest that in a shared physical custody arrangement, certainly in Nevada, you’d want the low time parent to have at least 40% of the parenting time. There’s a Nevada Supreme Court decision that came down a number of years ago that defined joint physical custody as an arrangement in which at least 40% of the time was spent in each parent’s home. But I wouldn’t say that there is a more common or more frequent pattern to shared physical custody. It contemplates substantial time of the children in the home of each parent.
Is there a difference between how custody and parenting time is determined in California and Nevada? What factors will those courts consider?
There is not really a significant difference in the determination of custody and parenting time between California and Nevada in that both states focus on a standard of what’s in the best interest of minor children. The court will make decisions if asked to decide, and the court will only make decisions in the absence of an agreement between the parents. But the court will make decisions based upon the best interests of the children, both in terms of decision making and in terms of a residential schedule.
Now it’s my experience both in California and Nevada that courts are predisposed to favouring joint legal custody and joint decision making. And that really means not that every decision that’s made by a parent about a minor child has to be one that is made in advance by concurrence of both parents. What it typically means to the courts is that each parent has the decision power, decision making powers, regarding a child’s health, education, and welfare while the child is in their care.
In terms of the parenting time, that’s a more case specific. That really is based upon the age of the children. It may be based on the relationship between siblings in the same family, it may be based upon the work schedules of the parents. There are so many factors and the court has given such broad discretion in parenting time that both states look at a variety of factors, both states look at largely the same factors but make a decision based upon the best interest of children in that fact specific setting.
Is there a gender bias by courts when it comes to awarding custody? Specifically, I’m wondering whether fathers are still at a disadvantage here.
Well, we have to start with the recognition that legally any type of gender bias favouring a parent based upon the fact that they’re a mother or a father would be impermissible by almost every legal standard that I’m aware of. I think your question is more directed towards the reality of what happens in the courts today. And I’m pleased to report that while I’ve been litigating custody matters for the better part of the past 40 years, I don’t see a gender bias in the courts either in California or Nevada.
In fact I would go so far as to say that many family law judges will look at divorce, or dissolution of marriage, and that’s really dependent upon which states, the titles we are using, they’re really synonymous. Most courts will look upon the opportunity of divorce to allow parties to maybe redefine their roles a little bit, differently than during the marriage.
So, if one parent was a breadwinner, while one was a stay at home homemaking parent, the court might well embrace that breadwinner’s desire to now refine his or her role in the relationship and spend time at home. And the court might expect of a stay at home parent that now given the new circumstances of divorce, they may need to go out of the home and start generating through gainful employment, money for their support and support of the children. So, I’m happy to report that not only do I not see a gender bias, but I see the courts open to redefining what could have been oftentimes gender related roles during happier days in the marriage.
If one parent has sole custody of the children, can he or she move away with the kids without the other parent’s permission?
You ask a question that is really hitting the bull’s eye of what has been one of the most hotly contested areas of family law over maybe the last two decades of my practice, and that’s the concept of moving children away from an existing geographic area where likely both parents are located.
There has been a lot of evolving law in both California and Nevada on this point. And I think where we stand now is essentially as follows, if one parent has primary physical custody, again remember we’re talking about a residential schedule; if that parent has primary physical custody, they will have the presumptive right to relocate the residence of the children. And the parent who objects to that would have the opportunity to come into court and seek to at least temporarily delay that relocation until a more thorough and permanent decision can be made about that.
Now understand the courts, the family courts, are never concerned about the rights of parents to move. Parents will have a constitutional right to move wherever they want, the court is focusing on the relocation of minor children. And it’s true to say that most times the custodial parent while free to move on his or her own part will not move without the children, that distinction is important.
Again, the courts in both states will typically look at the best interest of the children in terms of what the relocation will offer them, what the new residence will mean to them and balance that against what it will mean to be at distance, and likely have less contact with the remaining parent. If somebody has joint physical custody status then they would have to go to the court and get permission, or the permission of the other parent of course makes court involvement unnecessary, but they would have to get permission from the court to move. So, the distinction between sole physical custody and joint physical custody is very important when you’re talking about a move away case.
If one parent is withholding parenting time, can the other parent withhold child support until they get their court mandated time with the children?
Well, that’s maybe the easiest question you’ve asked me today because the answer is clearly, no. The rights of the children to be supported is different from the right of a parent to have access to a child. So, one cannot be bartered for or withheld for the other. A parent may have the opportunity to go to court and seek some orders regarding their support obligations if there is a withholding of visitation or parenting access, but a parent can’t do that on their own.
Are the child support guidelines meant to cover all expenses related to children in California and Nevada? And if not, what makes up the shortfall?
Well, you asked me that question about two different jurisdictions, California and Nevada, and they have very different child support guidelines. You know, it’s important to think back to when standardized child support guidelines became the law of the land and that largely became a consequence of federal funding for certain programs in the states that were for the benefit of minor children.
Every state was required to standardize their child support guideline but they weren’t required to adopt the same standard. Now Nevada has a guideline that sets forth a maximum amount of child support. And it’s based upon determining the number of children and which parent is the custodial parent. And once you determine which parent is the custodial parent and how many children are going to be supported, it’s simply a multiplier of the paying spouse’s gross income.
California comes up with a different guideline approach and it sets a minimum amount of child support. And it’s a much more complicated formula, complicated enough that as much as I have been involved in family law over these last, as you said about 40 years now, I don’t know of anybody in California who can take pencil to paper and calculate support. We do have software programs as I mentioned earlier that help us in doing that. In California what we’re doing is we’re setting minimum amounts of child support. So, it’s very different standards, very different guidelines between the two states.
Now in each instance the court has discretion to depart from the product of the guideline, that there are different requirements and different standards for departure from those presumptively correct numbers in each state. And in each state there are supplements to the guideline product which would involve things like unreimbursed healthcare expenses for children, which courts typically order the parents to share equally. Then there’s separate considerations for things like child care expenses. So there are additional, what we call child support add-ons, to the product of the child support guideline. And those are all intended to meet the full needs of the child.
When does child support typically end and are there any exceptions to this rule?
Child support typically ends when a child reaches age 18. If the child is still enrolled in high school as a fulltime student and living at home with a parent when they celebrate their 18th birthday, in both California and Nevada, support will extend.
In California the support will extend until high school graduation. So, you might say the California rule is age 18 having graduated from high school or graduation from high school having attained age 18, whichever last occurs. Nevada has kind of a strange twist in its law and it’s a twist that I have not seen the legislature or the Nevada Supreme Court deal with to date. And that is, the literal reading of the statute is if a child turns age 18 and has not yet graduated from high school, then the support obligation goes to age 19. And in that instance it may differ from California in that the child who turns 18 the day before graduating from high school while still living with a parent get supports for one extra day. In Nevada that could go for an extra year.
The exceptions to determination of a support obligation, in one of those states based upon one of those standards, is for, usually for disabled children, for children who are incapable of supporting themselves, usually through a physical or psychological or emotional ability. And those children, if we use that word loosely, are supported potentially beyond the age 18 standard that we’ve generally been talking about.
Once the amount and duration of child support have been set, can either be changed?
Well, both can be changed and they can be changed for a variety of reasons. The most common would be a change in the ability of the paying parent to pay the amount previously ordered. Or quite possibly an increased need in the parent who’s receiving the support and of course a change in the needs of the child who is being supported.
When there’s a material change of circumstance and material meaning going to something significant in either of those needs or abilities that we’ve talked about, then any court as long as the child is of support age, can revisit and change child support. In Nevada there’s a specific provision that merely the passage of three years entitles a parent to a review of child support, not necessarily a change. You still have to show a material change of circumstance but you get a free look at it simply because of the passage of three years in Nevada. There is no similar review based upon time only in California.
How does a judge determine the amount of child support to be paid in a high-asset divorce? Are the factors that go into the determination the same in California and Nevada?
The child support guidelines in each state serve a different purpose. But in both states judges are empowered to depart from the guideline to meet the needs of a child, whose needs will not be properly supported by a blind application of the product of the guideline. The courts will look at the lifestyle that the child has enjoyed, the courts will certainly look at the income and the assets of the parents.
The court will afford the children in both states the benefit of the financial abilities of both parents to enjoy what the parents can provide them in terms of support. There was a judge who said that the son of the chimney sweep has the needs of a pauper, and the son of king has the needs of a prince. And by my experience family law judges will depart and at times, as required by law, make appropriate findings of fact for departing from the guidelines to meet the relative needs of children based upon the wealth and the affluence of their parents.