Meaning of the Rivero II opinion: Each parent must have physical custody of the child at least 40 percent of the time, which is 146 days per year.
By Marshal S. Willick, Eqs. (Nevada)
“Reality is that stuff which, no matter what you believe, just won’t go away.”
– David Paktor
“For every complex problem, there is a solution that is simple, neat, and wrong.”
– H.L. Mencken
“There’s no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth.”
– Jean Giraudoux
Some lawyers and judges are making the determination of custodial time-shares more difficult than necessary, turning a simple problem into a complex one without real cause. As the trial court judiciary has splintered on the matter, unable or unwilling to reach consensus, reaching predictability and consistency in child custody cases will require yet another trip to the Nevada Supreme Court – which is already in process.
I. Background: Rivero II
Under Rivero v. Rivero, 125 Nev. ___, 216 P.3d 213 (Adv. Opn. No. 34, Aug. 27, 2009) (“Rivero II”), all physical custodial regimes involving 60/40 custodial time shares or closer are now considered “joint physical custody.”
The Opinion is actually pretty far-ranging and contains a number of holdings touching on the meanings, and rules for modifying, legal custody, physical custody, and child support.
Unfortunately, certain lawyers and judges have unnecessarily fixated on individual words or sentences in the 40+ page Opinion, resulting in application of the case at significant variance from its plain meaning.
Specifically, far too many people have got themselves wrapped around the axle when reviewing a single paragraph of the Opinion. Before looking at that paragraph, its context should be noted.
The Family Law Section was invited to – and did – submit an Amicus Curiae Brief to assist the Court in analyzing the legal issues relating to the definitions of legal and physical custody (the brief is posted at http://www.willicklawgroup.com/appeals).
After stepping through preliminary matters, and the facts and procedural history of the case, the Court engaged in a discussion outlined essentially the same way as laid out by the Section; the portions of the Court’s outline dealing with the law beyond the parties to that case relevant to this article was:
I. Legal custody
II. Physical custody
A. Joint physical custody
1. Defining joint physical custody
2. The timeshare required for joint physical custody
3. Calculating the timeshare
B. Defining primary physical custody
In short, section II was intended to set out an approach to be followed by courts seeking to resolve disputes. It was prescriptive, not proscriptive – intended to give courts a roadmap, not laying out a list of “forbidden fruit.” Guidance as to how to use the approach set out was illustrated in section II(B) and actually applied to the parties to the case in section III; it is losing the forest for the trees that has led some working in this area astray.
II. The Problem Of Defining Time
A. Meaning of the Rivero II Opinion
Where some lawyers and judges have over-focused is a single paragraph in section II(A)(3), which states:
The district court should calculate the time during which a party has physical custody of a child over one calendar year. Each parent must have physical custody of the child at least 40 percent of the time, which is 146 days per year. Calculating the timeshare over a one-year period allows the court to consider weekly arrangements as well as any deviations from those arrangements such as emergencies, holidays, and summer vacation.
In calculating the time during which a party has physical custody of the child, the district court should look at the number of days during which a party provided supervision of the child, the child resided with the party, and during which the party made the day-to-day decisions regarding the child. The district court should not focus on, for example, the exact number of hours the child was in the care of the parent, whether the child was sleeping, or whether the child was in the care of a third-party caregiver or spent time with a friend or relative during the period of time in question.
The concepts here are pretty straightforward – a parent has “custody” if a child “resides” with the parent, or if the parent “provides supervision” and “makes day-to-day decisions” regarding the child.
Some judges have fixated on the last sentence of that paragraph, and created their own rules based on that focus. One, in a recent opinion, proclaimed that recognition of the actual custodial time exercised by the parents would violate “counting prohibitions” – a term coined and repeated at least 20 times in the resulting order. Some of the ways judges have spun out based on the Court’s language are discussed below.
What was meant by the language used in the above quote was explained in Section II(B) (“Defining primary physical custody”), which explains a primary focus on “the child’s residence” so that “the party with primary physical custody is the party that has the primary responsibility for maintaining a home for the child and providing for the child’s basic needs.” The text there goes on to note that a primary physical custody arrangement “may encompass a wide array of circumstances.”
Unfortunately, this illustrative language has led at least one department of the family court to introduce a second kind of erroneous reading, also discussed below.
All of the “constructed” readings by trial judges ignore the paragraph by the Nevada Supreme Court immediately below the paragraph quoted above – which really does require them to take into account the actual custodial time of the parents:
Therefore, absent evidence that joint physical custody is not in the best interest of the child, if each parent has physical custody of the child at least 40 percent of the time, then the arrangement is one of joint physical custody.
B. Why The Nevada Supreme Court Used Those Words
We had suggested to the Court that “the purpose of the 40% threshold is to define a base and ensure that each parent is routinely the custodian of a child for a meaningful and significant period of time.”
We further cautioned that “anomalous” or transient disruptions in the usual schedule should not be seen or used as opportunities to alter custodial labels.
The Court addressed those concerns by adopting the “one-year lookback” provision quoted above, and further explained in section III(B), which some trial courts seem to inexplicably ignore:
Under the definition of joint physical custody discussed above, each parent must have physical custody of the child at least 40 percent of the time. This would be approximately three days each week. Therefore, the district court properly found that the 5/2 timeshare included in the parties’ divorce decree does not constitute joint physical custody. The district court must then look at the actual physical custody timeshare that the parties were exercising to determine what custody arrangement is in effect.
Specific factual findings are crucial to enforce or modify a custody order and for appellate review. . . . the district court must evaluate the true nature of the custodial arrangement, pursuant to the definition of joint physical custody described above, by evaluating the arrangement the parties are exercising in practice, regardless of any contrary language in the divorce decree.
The Amicus Brief had suggested making custodial time-shares between 40 and 49% a trigger for a discretionary labeling of custody as joint. The Court elected to make that labeling automatic, indicating a desire to make the matter non-discretionary. Given what trial court judges are doing, this intended direction for consistency has proven to be ironic.
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