Several new child custody laws went into effect with the enactment of Assembly Bill (AB) 263 on October 1, 2015. Among those laws, is a statute that explicitly sets forth, for the first time in the State of Nevada, that there is a “preference that joint physical would be in the best interests of a minor child” if each “parent has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child.” See AB 263, Sect. 6(b) (Chapter 125C, Statutes of Nevada 2015).
Although this law went into effect only about two weeks ago, there is already evidence to suggest that judges are interpreting the “preference” language differently. At least one judicial department has apparently voiced its opinion that the “preference” creates a presumption that best interests of a child are served by joint physical custody, and that the presumption can only be overcome by “clear and convincing evidence” that primary physical custody would be in the child’s best interests. In stark contrast, another judicial department has explained that it is unclear what “preference” means, but that it does not mean there is a presumption, and thus, best interests is still the sole legal standard in analyzing custody.
This drastic difference in interpretation of the new statute, exemplified in the statements by these two judicial departments, creates a high level of uncertainty as to what the new law means. This adds to frustration among family law attorneys because two goals of the family law bar have been to promote clarity in the laws, and to encourage uniformity in application of the laws and rules among the different judicial departments. The immediate and dramatic difference of opinion on the meaning of the new law suggests that neither of those goals was accomplished with the enactment of the new statute.
The differing opinions among our local judges also highlight the importance of retaining an attorney who has significant experience in the family court here in Clark County, Nevada. With experience comes knowledge of not only the law, but also a better understanding of the viewpoints of each judicial department. These viewpoints, especially when they may vary greatly from department to department, may make the difference in your case.