Kyle Winter: Joint petitions and initial custody determination
Editor’s note: The following column is the first in a series about family law issues affecting Nevada families.
Obtaining a divorce is often not only traumatic, but expensive and time consuming. In an effort to help streamline the process and reduce costs, Nevada permits parties to obtain a divorce by use of a Joint Petition rather than the traditional adversarial process of Summons, Complaint, and Answer.
The Joint Petition process is available when the issues surrounding the divorce have been agreed upon by a husband and wife. In cases where there are no children, debts, or property to be divided, and the parties simply want to end the marriage, they should consider proceeding by way of Joint Petition. However, even when there are children, as long as the parties have agreed on all custody, visitation, and child support issues, proceeding by Joint Petition is desirable because the parties avoid the expense and risk of having a judge decide their issues. Despite the ease of obtaining a divorce by Joint Petition, making the initial custody determination may be one of the most important steps and determinative factors regarding a parent’s rights when there are children involved.
In Nevada, legal custody and physical custody are separate and distinct concepts.
Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including those related to health, education, and religious upbringing. When parents share joint legal custody, the parties are required to cooperate, communicate, and compromise to meet the best interests of the child. Sole legal custody vests this right with one parent, while joint legal custody vests this right with both parents.
On the other hand, physical custody involves the time a child spends in the care of each parent. As with legal custody, parents can share joint physical custody or one parent may have primary physical custody while the other parent may have visitation rights.
In all divorces, and most certainly with Joint Petitions, the initial legal and physical custody determination have significant impacts for the future.
For instance, the initial physical custody arrangement determines the legal standard to be applied by the court when modifying physical custody in the future, affects the legal procedure if a parent wants to move out of the state with the child, and affects the manner in which child support is calculated. Thus, while obtaining a divorce by Joint Petition provides parties a cost-effective alternative to a lengthy and contested divorce, it’s always important to consult with an attorney when an initial custody determination is being made to ensure your rights are being protected.
At Allison MacKenzie Law Firm, we’re ready and willing to assist you with any questions you may have regarding your divorce. For more information, please visit AllisonMacKenzie.com, or call 775-687-0202.
Kyle Winter, a Carson City native, focuses his practice in the areas of family law, estate planning, guardianships and probate law at Allison MacKenzie Law Firm.