When Can You Request Modification of a Nevada Custody Order?

When a court establishes the child custody rights of parents, the custody order stays in effect indefinitely unless stated otherwise. Should a parent wish to change the provisions of the order because circumstances or needs change, court approval is necessary. Specific legal standards and procedures apply to a petition requesting a custody modification, so getting guidance from a knowledgeable custody lawyer is an important first step for a parent considering a modification request.

Key Takeaways

• Custody orders remain in effect indefinitely unless modified through court approval or an agreement is reached between the parents and approved by the court.
• A court may grant a child custody modification when there is a substantial change in circumstances that affects the child’s welfare, and the requested change serves the child’s best interest.
• Child custody modifications may involve legal custody or physical custody, with different legal standards applying to each.
• While custody proceedings are complex, it’s crucial to have the guidance of an experienced family law attorney.

Reasons for Modification of a Custody Order

Generally, a court grants modification of a custody order when (1) there is a substantial change in circumstances that affects the child’s welfare, and (2) the requested change serves the child’s best interest. Examples of reasons that may justify a custody modification commonly include:

• Remarriage of a parent
• Job loss or change of a parent
• Changes in the child’s educational or developmental needs
• Concerns about a child’s safety or well-being
• Parental diagnosis of a significant illness
• Substance abuse issues
• Relocation of a parent (It’s important to note that in some circumstances, a parent with primary or joint custody wishing to move a child will be subject to the Nevada Parental Rights Protection Act.)

These examples illustrate situations that may justify requesting a change in the custody order. Other circumstances may also warrant custody modification, if the legal tests are met.

Burden of Proof for a Custody Modification

When a parent seeks a child custody modification, the burden of proof is on the requesting party to demonstrate that there is a substantial change in circumstances and that the custody modification is in the best interest of the child. It is not a sufficient reason that a parent would simply prefer a different arrangement. Evidence and facts must demonstrate to the court that a substantial change has occurred and that the current custody order no longer serves the best interest of the child.

Whether a substantial change in circumstances has occurred is a factual issue to be proven with evidence provided to the court. Generally, courts require that the change is meaningful, continuing, and directly connected to the child’s welfare. 

Evaluating the Best Interest of the Child

In evaluating the best interest of a child, Nevada law establishes specific factors in NRS 125C.0035(4) that a court must take into account. Speculation or conjecture is not considered. The requesting parent must produce evidence to show how the child’s best interest is affected. The court would consider the following factors, as well as others specified in the statute:

• The physical, developmental, and emotional needs of the child
• The child’s relationship with each parent
• The mental and physical health of each parent
• The level of conflict between the parents
• Any history of abuse or neglect
• The child’s wishes, if the child is old enough

Importantly, a custody modification does not always require a contested hearing. While parents know their child best, they may work out a new arrangement between themselves using negotiation, mediation, or another form of alternative dispute resolution. However, the agreement must be submitted to the court and approved as a new order before it replaces the existing one.

Type of Custody in Nevada

Nevada recognizes two types of custody: legal and physical. A custody order addresses both types of custody in detail. In reviewing a custody modification request, the court will pay close attention to which type of custody the petition seeks to modify. It’s important for the parents to understand the differences.

Legal custody relates to decision-making power relating to the child’s upbringing, such as education, healthcare, religion, and similar matters; legal custody is either sole or joint. Requested changes may relate to decision-making authority, adding requirements for agreement on specific issues, changing the process for resolving disagreements, and other matters. If the modification request relates to a change in the terms of legal custody, the requesting parent must prove that the new, requested arrangement works best for the child and the family situation. The requesting parent must establish that there is a substantial change in circumstances underlying the request and prove how modification would serve the child’s best interest.

Modification of primary physical custody makes changes in the child’s living arrangements, such as specifying the primary residence, adjusting the sharing ratio between the parents, addressing specific arrangements like holidays, or changing the parenting agreement or visitation schedule. Changes in primary physical custody generally require a showing of both a substantial change in circumstances and that the requested changes serve the child’s best interest. When parents already have joint physical custody, the court’s primary focus will be whether the change serves the best interest of the child.

Considerations of the Court in a Child Custody Modification Case

In reviewing a petition for a child custody modification, the court may take into account any matter that relates to the child’s well-being. Some examples of reasons that the court may agree to change custody include:

• A parent is neglecting the child or repeatedly violating the custody order
• The child’s educational, developmental, or emotional needs have changed significantly
• The child faces danger from abuse, substance abuse, or criminal activity
• A parent’s ability to care for the child has substantially improved since the prior order 

In contrast, the court may find that custody modification is not justified if the evidence demonstrates that the issues are due to normal disagreements between parents, a parent’s subjective dislike for the terms of the current order, or parental attempts to change the agreement without court involvement.

The Importance of Legal Representation in a Custody Matter

Custody proceedings are factually and legally complex. While a parent is not required to have legal counsel, a lawyer protects the rights and interests of the client, advocates on their behalf, and provides professional guidance to help navigate the legal process and requirements. Having a proven professional in a custody case can make a significant difference in a parent’s ability to make sound decisions, in addition to making a difference in the outcome of the case.

Even a request to modify an existing order should not be pursued without a consultation with knowledgeable legal counsel. Representation in the court proceedings is virtually essential because of the need to produce persuasive evidence in court to support the modification request and to ensure that the basis of the request meets the legal requirements for a substantial change in circumstances and serving the child’s best interest.

Schedule a Free Consultation with a Las Vegas Child Custody Lawyer

Experienced Las Vegas custody lawyer Joseph Gersten helps clients with all types of family law matters, including child custody. If you are considering requesting a modification of an existing custody order, we encourage you to take the time to talk with us without a charge or obligation.

The Gersten Law Firm serves clients in Las Vegas, Henderson, and elsewhere in Clark County. Call us at 702.857.8777 or complete our online form to schedule an appointment.