Charges of domestic violence often have far-reaching effects on the life of a person who is the subject of the claims. In Nevada, one area that is affected significantly is child custody. State laws require a judge to consider domestic violence allegations in making a decision about custody of a child. As a result, the effect of a domestic violence history in a Las Vegas child custody case can be substantial and lead to denial of custody.
At The Gersten Law Firm, we assist clients with all types of family law matters, including child custody. Las Vegas attorney Joseph Gersten uses his extensive trial and investigative experience in vigorously representing clients. Your initial consultation is always free-of-charge.
The Nevada child custody statute provides that courts must make custody decisions based solely on what is in the best interest of the child. The law includes twelve (12) factors for a judge to consider in making specific findings about custody.
One of the court’s areas of concern is domestic violence. Specifically, the statute requires to court to consider whether a person seeking physical custody of a child “has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.” In this context, domestic violence refers to the Nevada domestic violence statute, NRS 33.018.
If a custody case involves an allegation of domestic violence, the statute requires that the court hold an evidentiary hearing. If the judge determines by “clear and convincing evidence” that a person seeking custody engaged in one or more acts of domestic violence against the child, the law creates a “rebuttable presumption” that custody (sole or joint) by that person is not in the best interest of the child.
When a court makes the determination that a history of domestic violence exists, the statute requires the judge to provide findings of fact supporting the conclusion that one or more acts of domestic violence occurred. In addition, the judge must provide findings that the ordered custody or visitation adequately protects the child and parent or other victim of domestic violence who resided with the child.
In situations where the judge finds that both parties engaged in acts of domestic violence, the court has responsibility to determine the primary physical aggressor, if possible. The statute lists considerations for the judge to take into account in making this determination. If the court is able to determine which party is the primary physical aggressor, the presumption that custody is not in the best interest of the child applies to that party.
If a party raises domestic violence allegations in a child custody case, the statutory provisions govern the proceedings. First, the court holds an evidentiary hearing to determine the basis for the allegations.
Following the hearing, the judge issues findings of fact based on the evidence introduced at the hearing. If the judge concludes that there is clear and convincing evidence of domestic violence, the presumption arises.
“Clear and convincing evidence” is a mid-level burden of proof. Under United States Supreme Court decisions, it means evidence that is highly and substantially more likely to be true than not. This legal standard of evidence is less than the standard of “beyond a reasonable doubt” required to convict a person of a crime.
If the presumption arises that custody is not in the child’s best interests, the person facing the domestic violence allegations has the opportunity to present evidence to overcome (rebut) the presumption. That evidence must support the conclusion that custody by that person would be in the best interest of the child. In this situation, the court takes into account all the factors in the law for determining custody.
If your custody case involve allegations of domestic violence, representation by experienced legal counsel is essential. That is true whether the other party makes the allegations against you, or whether you are the person making the allegations.
The judge’s decision on whether the domestic violence claims give rise to the statutory presumption rests on evidence presented during a formal court hearing. Even if the court finds that the presumption exists, a party can overcome the presumption by showing that custody would be in the child’s best interest. Providing evidence to the court always must be in accordance with court procedures and the rules of evidence.
A Las Vegas custody case involving allegations of domestic violence is complex in terms of the law as well as the court procedure. Under Nevada law, either side can prevail by convincing the judge of the merits of their assertions. Representation by an attorney experienced in custody litigation as well as domestic violence cases gives you the best chance of success in convincing the judge of your position in the case.
If you face child custody issues in Las Vegas, Henderson, or elsewhere in Clark County, Las Vegas family law attorney Joseph Gersten is here to help. Attorney Gersten also assists clients with domestic violence protection orders (DVPO) and domestic violence charges. His extensive experience with all the issues involved with domestic violence allegations in a child custody case positions him especially well to represent clients in these types of cases.
Your initial consultation is always free-of-charge at The Gersten Law Firm. Call 702.857.8777 or complete our online form to schedule an appointment.