Meaning of the Rivero II: Determining the normal time share, and apportioning it between the parents in accordance with their supervision of the child.
By Marshal S. Willick, Eqs. (Nevada)
III. Meaning of the Rivero II: What Courts Are Doing
The majority of trial courts are apparently doing as the Rivero panel suggested at the recent Ely conference – looking at what the normal de facto time share is, and apportioning it between the parents in accordance with their supervision of the child. Since kids are normally not exchanged at midnight, this necessarily entails apportioning to parents some partial days – half, one third, etc., which turn into a percentage of time in view of the one-year lookback. 146 days or more equals 40% and is joint custody; less than that does not, and is not.
Some judges, however, have decided to make up altogether different approaches, which are leading to some bizarre conclusions. One court has announced that any time a parent touches a child in a day constitutes “custody” for that day. So if the parties saw the child, for any length of time, each got a “day” – theoretically, up to 14 in every week, yielding a 730-day year.
Another court has decided that the language first quoted above has created an “all or nothing” situation, so that if one parent had eight hours out of each 24, that reality must be ignored, and the other parent would be found to have 100% custody of the child.
And a third court has managed to so parse the Rivero holding so as to do exactly what the case itself specifically prohibited – calling a 5/2 timeshare “joint custody.” The court did so by a combination of what the two other jurists noted above did – first rejecting any partial allocations of days as “counting prohibitions,” and then finding that “it is feasible for both parties to be credited for the same day during a given calendar year,” by finding that time is not “mutually exclusive.” All of that extended analysis flowed from the court’s observation that “Although it easily could have, nowhere does Rivero II refer to a day as being defined as a 24 hour period of time.”
That court evaluated a time-share where one parent saw the child from 10:00 a.m. on Tuesdays until 6:00 p.m. Wednesdays, and every other weekend (alternated between Friday at 10:00 a.m. to 3:00 p.m. Saturday, and 3:00 on Saturday until 3:00 p.m. Sunday).
In fact, this time-share is essentially a 5/2 custody split (expanded by a few hours) – precisely the same as the time share explicitly ruled not to be “joint custody” in Rivero II. But by redefining terms, this court talked itself into labeling the above time-share as joint custody! As detailed below, the timeshare displayed is actually 67% to 33% – clearly one of primary custody to one parent, and visitation to the other.
IV. Cosmology And Courtrooms
Rivero II contains no “counting prohibitions.” It does not require judges to ignore reality, or abandon common sense.
It is true that neither the Section’s Amicus Brief, or the Court’s Opinion, defined a “day.” Frankly we thought Copernicus had taken care of that problem, and that it wasn’t necessary. Other States have apparently been warier as to the potential creativity of their judiciary. For example, Virginia statute 20-108.2 G 3(c) provides:
Definition of a day. For the purposes of this section, “day” means a period of 24 hours; however, where the parent who has the fewer number of overnight periods during the year has an overnight period with a child, but has physical custody of the shared child for less than 24 hours during such overnight period, there is a presumption that each parent shall be allocated one-half of a day of custody for that period.
Presumably, the Nevada Supreme Court will have to take on this matter when the next case reaches it. But in the meantime, I do not think it is asking too much for our courts to acknowledge that there are 24 hours in a day. Seven days in a week. 365 days in a year (most years). This is pretty basic “judicial notice” stuff. Attached to the Rivero II Amicus Brief was a chart giving typical “measurements of custodial time.” It is posted at http://www.willicklawgroup.com/child_custody_visitation under the heading “Percentage of Custodial Time in Typical Custody Schedules.” This really is not all that difficult – a typical every-other-weekend schedule, for example, equates to 14%. Every other weekend, plus one overnight per week: 29%. And every other weekend (52 days), plus two weeks in summer (14 days), plus Mother’s Day or Father’s Day (1 day), plus Thanksgiving or Christmas (2 days), plus birthdays (2 days), plus a miscellaneous day (1 day): 20% . Etc.
Likewise, it’s not hard to convert a number of overnights to approximate percentages of custodial time – 37 = 10%; 146 = 40%; 183 = 50%. As always, however, what the parents actually do defines their actual time-share, especially in a 24-hour town where one parent may be responsible for a child, providing supervision and making day-to-day decisions for part of a day – even every day – but the child sleeps at the other parent’s home, where that parent necessarily is “responsible” for that time.
As noted by the Court in the text quoted above, the idea of a full one-year look-back is to take into account both the normal “weekly arrangements” and the reality of emergencies, holidays, summer vacation, etc. to determine the reality of who has actually been providing what percentage of physical custody of a child. It makes no sense to ignore reality while purporting to measure it.
For those that find it too difficult to “see” a time-share from words, there are several tools available. This office, for example, typically uses “Custody X Change” (see www.custodyxchange.com), which reports that as for the case discussed in detail above, the overall time-share is 67% to 33%, while the “overnights” (if that was relevant for any reason) would be 73% to 27%. It produced the graphics displayed above, as well. Obviously, other such software exists.
Using such tools, it is relatively simple to load in a “normal” schedule, and any superseding holiday and vacation schedules, and see what the time share actually is. Does this “count hours?” Well, only in the sense of not defying or ignoring reality – over the course of a year, eight hours a day is about 122 days!
The purpose of Rivero II was to bring consistency and predictability to child custody and support proceedings. As the Court put it:
District courts can use their discretion to make fair determinations in individual child custody cases. However, this becomes unfair when different parties similarly situated obtain different results. Such unreliable outcomes also make it difficult for attorneys to advise their clients and for parties to settle their disputes. Therefore, the timeshare requirement that this opinion establishes is both necessary to ensure consistent and fair application of the law and proper under this court’s precedent.
The failure of the trial court judiciary to achieve consensus on such basic matters as what constitutes a “day” and how many of them pass by in a year will apparently require yet further direction from the Nevada Supreme Court. It can only be hoped that the necessary direction comes soon, simply, and consistently with cosmological reality.
Marshal S. Willick, Esq. is the Principal of the Willick Law Group, an A/V-rated Las Vegas family law firm, and a Continuing Legal Education Instructor. In Nevada, there are no juries in Family Law cases. Mr. Willick has been taking such cases to trial since the 1980s, the number of which by now is estimated in the thousands. He has also participated in hundreds of divorce and pension cases in the trial courts of other States, as a consultant, expert, or as amicus curia.