Hello to all readers, my name is Joe Riccio and I am an attorney here at the Willick Law Group. I am going to make it a point every now and then to drop a blog entry here for a little basic "legal know."
I want to discuss NRS 125C.200, Consent required from noncustodial parent to remove child from State; permission from court; change of custody.
For those of you who may be:
1. Married or in a relationship?;2. Have a child or children stemming from that relationship?;3. Both live in Nevada?;4. One of you now wants to move out of the State of Nevada, and the other wants to stay?; and5. Is there a Court Order for custody that has already been established?
If you answered yes to these questions, then you may be asking yourself either - What do you do? What can you do? What does the law say? If you are the moving parent, can you leave? If you are the non-moving parent, can you object to the move?
According to NRS 125C.200, if custody has been established and the custodial parent intends to move his residence to a place outside of this State and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before he leaves this State with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the noncustodial parent.
Based on this statute, it is clear that a Motion for Relocation (permission from the court to move out of State) is required ONLY when an Order ALREADY exists in the case (detailing custody/visitation), and the moving parent wants to leave Nevada to the objection of the non-moving parent. However, if the non-moving parent does not object, a Motion to Relocate is not required, and written consent will suffice.
Again, this rule applies ONLY when there is an existing Order in the case dealing with custody/visitation.
So then begs the question of what to do when 1-5 (listed above) apply to you, but number 6 does not (because a Court Order does not exist). Is a Motion for Relocation Necessary? Required?
I believe the answer to both of those questions is NO. If a Court Order does NOT exist for custody/visitation purposes, then the court is merely left with a custody determination and/or visitation schedule at that point - not a Motion for Relocation. It is not proper in the absence of a Court Order pursuant to NRS 125C.200 to file a Motion for Relocation when a Court Order has failed to be established.
Now, your in the know.
Thanks,
Joe Riccio, Esq.
Tuesday, May 19, 2009
Wednesday, April 29, 2009
NOMAD v. MLAW
An attorney has apparently been circulating some or all of pieces of a recent district court decision to various attorneys around the state, a copy of which has been provided to me. I thought those who are doing support calculations would want to know how this affects what we do in Family Court, and what is going to happen next. For convenience, a copy of the entire opinion in one piece is attached.
Specifically, a question has arisen as to the correct methodology of calculation of penalties on child support arrears, when those arrears are owed for more than about two years. One department of the Eighth Judicial District Court, Family Division, has held (in April, 2009) that because the State Welfare Division calculates those penalties as one-time, non-recurring events, the court on balance believes it should do likewise. That decision is not binding on anyone but the parties to that one case, in that one department, but the matter is of sufficient interest to the Bench and Bar that the matter has been taken up on appeal.
The district court opinion contains a number of errors of fact and law, although the court followed the argument generally, and I believe the court tried to fairly weigh the alternatives. For example, the federal child support regs only require applying any incoming payment to that month's support due first, and then to any arrears, while long-standing Nevada case law requires applying all incoming payments to the oldest arrearage first. The MLAW program has had a switch (since version 1) that allows the user to do either, a distinction that the court missed, believing it to be a variation between NOMADS and MLAW, and the doing of which is irrelevant in a non-IV-D case (there is no federal law mandating either approach, which is why the program default conforms to the directions of the Nevada Supreme Court on the point). There are multiple other similar errors, which is why the briefing will be extensive, and why I think the court's bottom line conclusion is simply wrong.
Resolution of the appeal can, and probably will, take a couple of years. The Legislature may act to clarify the matter - but that will also take two years. Of course, should either the Nevada Supreme Court or the Legislature adopt the view of penalty calculation found preferable by Department I, the Marshal Law Interest and Penalty Calculation program will be modified to perform calculations in that manner. In the meantime, it is possible to manually recreate the sloppy and less accurate NOMADS methodology manually, but it would be somewhat laborious in any complex support case.
In the meantime, anyone with questions as to the alternate methods of calculation can contact this office at the link below or go to www.willicklawgroup.com/Actual_Calculation_Differences for a detailed explanation of the current methodologies being used. Those wishing to know the background and detail as to the dispute can reference the entire article, posted on our Published Works page, entitled: "Why the Nevada Welfare Division is Calculating Interest and Penalties Incorrectly, and How It Injures Nevada Litigants" or by pressing the following link, www.willicklawgroup.com/why_the_nevada_welfare_division. Comments and suggestions are welcome at www.willicklawgroup.com/blog.
Specifically, a question has arisen as to the correct methodology of calculation of penalties on child support arrears, when those arrears are owed for more than about two years. One department of the Eighth Judicial District Court, Family Division, has held (in April, 2009) that because the State Welfare Division calculates those penalties as one-time, non-recurring events, the court on balance believes it should do likewise. That decision is not binding on anyone but the parties to that one case, in that one department, but the matter is of sufficient interest to the Bench and Bar that the matter has been taken up on appeal.
The district court opinion contains a number of errors of fact and law, although the court followed the argument generally, and I believe the court tried to fairly weigh the alternatives. For example, the federal child support regs only require applying any incoming payment to that month's support due first, and then to any arrears, while long-standing Nevada case law requires applying all incoming payments to the oldest arrearage first. The MLAW program has had a switch (since version 1) that allows the user to do either, a distinction that the court missed, believing it to be a variation between NOMADS and MLAW, and the doing of which is irrelevant in a non-IV-D case (there is no federal law mandating either approach, which is why the program default conforms to the directions of the Nevada Supreme Court on the point). There are multiple other similar errors, which is why the briefing will be extensive, and why I think the court's bottom line conclusion is simply wrong.
Resolution of the appeal can, and probably will, take a couple of years. The Legislature may act to clarify the matter - but that will also take two years. Of course, should either the Nevada Supreme Court or the Legislature adopt the view of penalty calculation found preferable by Department I, the Marshal Law Interest and Penalty Calculation program will be modified to perform calculations in that manner. In the meantime, it is possible to manually recreate the sloppy and less accurate NOMADS methodology manually, but it would be somewhat laborious in any complex support case.
In the meantime, anyone with questions as to the alternate methods of calculation can contact this office at the link below or go to www.willicklawgroup.com/Actual_Calculation_Differences for a detailed explanation of the current methodologies being used. Those wishing to know the background and detail as to the dispute can reference the entire article, posted on our Published Works page, entitled: "Why the Nevada Welfare Division is Calculating Interest and Penalties Incorrectly, and How It Injures Nevada Litigants" or by pressing the following link, www.willicklawgroup.com/why_the_nevada_welfare_division. Comments and suggestions are welcome at www.willicklawgroup.com/blog.
Tuesday, April 7, 2009
The ever expanding problems with World of Warcraft
Hello everyone this is Mandy McKellar from Willick Law Group.
"Do the dishes, Get the Laundry done..." But still all you do is stare at the back of his head... This may be a joke to some but to others it is an utter nightmare.
I have been doing some extensive research lately on online role playing games (World of Warcraft kind of stuff) and its effect on marriage. I have not had this problem come into fruition in my practice as of late, but I have begun to see that it is a serious problem. An ever growing number of stories have come out speaking about gamers who play for extended periods of time and in turn their marriage, homelife, chores bills and jobs seem to suffer. There have even been some stories about people dying as a result of too much video gaming. But the biggest item to suffer is their marriage. Dr. Phil recently had a show on this topic as well http://www.drphil.com/slideshows/slideshow/4149/?id=4149&isTip=&slide=1&null=null, and if you look online there are many support groups around to deal with this issue. Specifically http://www.olganon.org/ is an entire support group devoted to those who are effected daily by this problem.
This of course was probably not something that my other fellow members of the bar would have predicted could be a major contribution to the dissolution of marriage a few years ago, in fact it was unheard of. But now it is time to recognize it. Here are a list of questions one can ask in order to determine if you or somoene you know has a gaming addiction. They came off of Dr. Phil...and there are also a series of questions on Olganon (Online Gamers Anonymous).
1. Do you feel that you need to play online games as a way of dealing with anxiety or depression in your general life?
2. Are you preoccupied with gaming so much that you are distracted from the priorities in your life, such as relationships, school or jobs?
3. Have you lied to your friends or family to conceal your obsessive thinking about gaming?
4. Do you get restless and irritable when you are away from gaming or feel that you are restricted from your next gaming event?
5. Have you attempted to stop or cut back your gaming behavior, but failed because of the anxiety, depression or general stress you experience?
6. Do you feel you need to play online games because it gives you the self-esteem and confidence other activities don’t?
7. Have you lost or damaged a relationship, such as affectionate, sexual or parental connection because of your obsession, lying or distorting your behavior of gaming?
8. Have you diminished your goals, such as grades, sports, money, etc. because of your obsession with gaming?
9. Have you lost or damaged job opportunities because of your obsessive gaming behavior?
10. Have you lost or damaged family and community relationships because of your gaming behavior?
If you say "yes" to most of these you may have a bigger problem than you think...
"Do the dishes, Get the Laundry done..." But still all you do is stare at the back of his head... This may be a joke to some but to others it is an utter nightmare.
I have been doing some extensive research lately on online role playing games (World of Warcraft kind of stuff) and its effect on marriage. I have not had this problem come into fruition in my practice as of late, but I have begun to see that it is a serious problem. An ever growing number of stories have come out speaking about gamers who play for extended periods of time and in turn their marriage, homelife, chores bills and jobs seem to suffer. There have even been some stories about people dying as a result of too much video gaming. But the biggest item to suffer is their marriage. Dr. Phil recently had a show on this topic as well http://www.drphil.com/slideshows/slideshow/4149/?id=4149&isTip=&slide=1&null=null, and if you look online there are many support groups around to deal with this issue. Specifically http://www.olganon.org/ is an entire support group devoted to those who are effected daily by this problem.
This of course was probably not something that my other fellow members of the bar would have predicted could be a major contribution to the dissolution of marriage a few years ago, in fact it was unheard of. But now it is time to recognize it. Here are a list of questions one can ask in order to determine if you or somoene you know has a gaming addiction. They came off of Dr. Phil...and there are also a series of questions on Olganon (Online Gamers Anonymous).
1. Do you feel that you need to play online games as a way of dealing with anxiety or depression in your general life?
2. Are you preoccupied with gaming so much that you are distracted from the priorities in your life, such as relationships, school or jobs?
3. Have you lied to your friends or family to conceal your obsessive thinking about gaming?
4. Do you get restless and irritable when you are away from gaming or feel that you are restricted from your next gaming event?
5. Have you attempted to stop or cut back your gaming behavior, but failed because of the anxiety, depression or general stress you experience?
6. Do you feel you need to play online games because it gives you the self-esteem and confidence other activities don’t?
7. Have you lost or damaged a relationship, such as affectionate, sexual or parental connection because of your obsession, lying or distorting your behavior of gaming?
8. Have you diminished your goals, such as grades, sports, money, etc. because of your obsession with gaming?
9. Have you lost or damaged job opportunities because of your obsessive gaming behavior?
10. Have you lost or damaged family and community relationships because of your gaming behavior?
If you say "yes" to most of these you may have a bigger problem than you think...
Wednesday, April 1, 2009
Its Spring time!!
In an effort to keep our clients and colleagues informed as to those matters that are occurring in the area of family law we have implemented a new monthly newsletter. If you have any questions regarding any of the information within this newsletter or any other matters that come up please do not hesitate to contact Mandy McKellar at extension 121. We appreciate your business and hope to assist you with any of your family law matters that may occur in the future.
Sincerely,
WLG Staff
JOINT PHYSICAL CUSTODY
Rivero v. Rivero, 124 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 84, October 30, 2008)
First addressing the definition of joint physical custody in Nevada, the Nevada Supreme Court adopted the Missouri definition, which focuses on each parent spending a significant amount of time with the child to ensure that the child has meaningful contact with both parents, without requiring a specific timeshare, and requiring specific findings of fact to support a finding of joint physical custody.
Finally, the Court set out a new formula for determining child support in joint physical custody cases, extending the test under Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998) (establishing how to calculate support in a 50/50 custody case) to account for both income disparities and an unequal timeshare variable.
Basically, in English, the case allows for a re-designation of time share by filing a Motion. It is conceivable that if your sharing child custody where one person is give the title of "primary physical custodian," you could possibly get the designation changed to joint therefore, lowering your child support obligation. Please call Mandy McKellar at (702) 438-4100 extension 121 if you have any questions or concerns.
NEW SUPREME COURT RULES
In an effort to make trips to court easier. The Supreme court has recently adopted new rules regarding appearance by communications equipment. Specifically ADKT 424. It will soon be possible to attend court hearings right from the comfort of our office. We will be adding a video conference capability to our office very soon. Stay tuned for details!
ANNOUNCEMENTS
We are pleased to welcome back Richard L. Crane, Esq. Richard ("Rick") started back with the firm earlier this month. He is very knowledgeable in all areas of family law with a high degree of specialty in Military issues. If you would like to contact him for any questions or concerns his email is richard@willicklawgroup.com and he is at extension 115.
DPS "DOCUMENT PREPARATION SERVICES"
We are in the process of adding another sector of our firm to assist those who have a hard time affording legal counsel in these harsh economic times, in preparation of their legal paperwork.
The days of those in a lower economic predicament depending on paralegal services to prepare their paperwork are over. DPS will afford those who need it, an opportunity to have legal counsel prepare and review documents.
Our prices will be on a per document basis. In addition, to the document preparation we will offer on the spot court appearances, and consults for a small fee. Call Kari Molnar, Esq. extension 127, or email kari@willicklawgroup.com for further details.
QDRO PREPARATION
Here at the Willick Law Group we have a vast amount of knowledge in the preparation of Qualified Domestic Relations Orders ("QDRO"), and Court Orders for Acceptable Processing ("COAP"), as well as other documents needed for the division of retirement benefits in divorce cases. Not all firms presently have nor want these capabilities. For a small fee we will prepare all the necessary documents to assure that you retirement is divided correctly. Please contact Joe Riccio, Esq. extension 113 for details or email joe@willicklawgroup.com.
In an effort to keep our clients and colleagues informed as to those matters that are occurring in the area of family law we have implemented a new monthly newsletter. If you have any questions regarding any of the information within this newsletter or any other matters that come up please do not hesitate to contact Mandy McKellar at extension 121. We appreciate your business and hope to assist you with any of your family law matters that may occur in the future.
Sincerely,
WLG Staff
JOINT PHYSICAL CUSTODY
Rivero v. Rivero, 124 Nev. ___, ___ P.3d ___ (Adv. Opn. No. 84, October 30, 2008)
First addressing the definition of joint physical custody in Nevada, the Nevada Supreme Court adopted the Missouri definition, which focuses on each parent spending a significant amount of time with the child to ensure that the child has meaningful contact with both parents, without requiring a specific timeshare, and requiring specific findings of fact to support a finding of joint physical custody.
Finally, the Court set out a new formula for determining child support in joint physical custody cases, extending the test under Wright v. Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998) (establishing how to calculate support in a 50/50 custody case) to account for both income disparities and an unequal timeshare variable.
Basically, in English, the case allows for a re-designation of time share by filing a Motion. It is conceivable that if your sharing child custody where one person is give the title of "primary physical custodian," you could possibly get the designation changed to joint therefore, lowering your child support obligation. Please call Mandy McKellar at (702) 438-4100 extension 121 if you have any questions or concerns.
NEW SUPREME COURT RULES
In an effort to make trips to court easier. The Supreme court has recently adopted new rules regarding appearance by communications equipment. Specifically ADKT 424. It will soon be possible to attend court hearings right from the comfort of our office. We will be adding a video conference capability to our office very soon. Stay tuned for details!
ANNOUNCEMENTS
We are pleased to welcome back Richard L. Crane, Esq. Richard ("Rick") started back with the firm earlier this month. He is very knowledgeable in all areas of family law with a high degree of specialty in Military issues. If you would like to contact him for any questions or concerns his email is richard@willicklawgroup.com and he is at extension 115.
DPS "DOCUMENT PREPARATION SERVICES"
We are in the process of adding another sector of our firm to assist those who have a hard time affording legal counsel in these harsh economic times, in preparation of their legal paperwork.
The days of those in a lower economic predicament depending on paralegal services to prepare their paperwork are over. DPS will afford those who need it, an opportunity to have legal counsel prepare and review documents.
Our prices will be on a per document basis. In addition, to the document preparation we will offer on the spot court appearances, and consults for a small fee. Call Kari Molnar, Esq. extension 127, or email kari@willicklawgroup.com for further details.
QDRO PREPARATION
Here at the Willick Law Group we have a vast amount of knowledge in the preparation of Qualified Domestic Relations Orders ("QDRO"), and Court Orders for Acceptable Processing ("COAP"), as well as other documents needed for the division of retirement benefits in divorce cases. Not all firms presently have nor want these capabilities. For a small fee we will prepare all the necessary documents to assure that you retirement is divided correctly. Please contact Joe Riccio, Esq. extension 113 for details or email joe@willicklawgroup.com.
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