Divorce War Radio Transcript: Child Custody

The following is a transcript of the Divorce War Radio show episode focused on child custody. Divorce attorney Stacy Rocheleau and divorce mediator Margaret Pickard discuss the basics of legal and physical custody with divorce attorney Peter James. Show was recorded in April of 2011.

Margaret Pickard:  Good evening everybody. Welcome to Divorce War Radio. I am Margaret Pickard, mediation attorney, and I am here with veteran divorce attorney, Stacy Rocheleau. We are here every Wednesday from 5:00 to 6:00 on 970 AM KNUU to answer your questions about divorce, child custody, asset distribution because you and I know that divorce and child custody can be downright war.

So we're here to give you the ammo and the information you need. If you want to find out more about us, go to divorcewarradio.com or send your questions in to Divorce War at 970knuu.com. Questions about your particular case, give us a call at our office at 914?0400. We also would love to have you visit our website and our page on Facebook at Rocheleau Law. Search rocheleaulaw.com or, again, visit us at divorcewarradio.com.

I have to tease Stacy all the time because her last name is so hard to spell. Vanna, can I buy a vowel? There are so many e's and e's and e's in there, but all you need to remember is divorcewarradio.com and that will take you directly to our website page and there you can find a lot of good information.

Stacy Rocheleau:  Including videos of us right?

Stacy Rocheleau:  There are actually a lot of videos. There is videos of myself, and there are also videos of our special guest tonight is Peter James who is an attorney at our firm. He is an excellent divorce attorney.

Stacy Rocheleau:  Not only an attorney, but he is our appellate attorney. He specializes in appeals with the Nevada Supreme Court so...

Stacy Rocheleau:  Absolutely. He has done a number of appeals and has actually been granted writs from the Supreme Court, which is very, very rare, and there are also videos of him on there for some specific legal issues. So full of information that the average person can just click on and get some actual legal advice just sitting there watching that page...

Stacy Rocheleau:  Absolutely.

Stacy Rocheleau:  And again divorcewarradio.com will take you to our website at rocheleaulaw.com. So last week we had a real fun night. We talked a lot about prenuptial agreements...

Stacy Rocheleau:  Yes.

Stacy Rocheleau:  And the importance of that, and we invited Kelly Yong and she talked a lot about the issues, and we talked about the legal consequences, and of course at the end recommended if you're going into a second or third marriage or you have children, always remember to think about a prenup.

If you missed that show, you can find it at 970knuu.com under Divorce War Radio, and so you can listen, get a little bit of information on whether or not you might need a prenuptial agreement. Next week, we're talking about bankruptcy.

Stacy Rocheleau:  Yes.

Stacy Rocheleau:  We have a special guest.

Stacy Rocheleau:  We have Scott Smith. Attorney Scott Smith...

Stacy Rocheleau:  Scott Smith... Scott... sorry.

Stacy Rocheleau:  That will be here in the studio with us, and a lot of times, especially in this economy, bankruptcy and divorce go hand in hand. You know, one may come before the other, but oftentimes both of them happen. So I think by having Scott on here to tell our listeners what their options are as far as bankruptcy goes, I think that will be a very helpful topic for a lot of people.

Stacy Rocheleau:  Oh I think it is important for people to understand what their legal issues are and their financial consequences of divorce because basically when people get divorced, they are looking at splitting up a home and using the same income to now support two homes, and so how do we accomplish that, and in this market it's very difficult especially if there is no longer the same amount of income or if one party isn't employed.

Tonight we are actually talking about a somewhat related issue financially. We're going to be talking about child custody, child support...

Stacy Rocheleau:  Yes.

Margaret Pickard:  And that also is impacted, Stacy, by people's income today and you actually...

Stacy Rocheleau:  Yes.

Margaret Pickard:  Have a YouTube video on that and the importance of going in if your income has been adjusted, reduced down to go in and ask the court for a modification right away. Tell us about that.

Stacy Rocheleau:  That's right. Margaret, one thing that people don't realize is that when you have a child support order and you're paying child support that that can't be modified, and, gosh, maybe a year ago now, I did a video and we put it up on YouTube talking about how to go in and get that child support order modified.

And that was right when the economy was starting to go down, people were losing their jobs, they were getting laid off, they were getting those salaries just sliced, and it was very, very important for people to know that when you want your child support modified, you have to go in and do it right away because they're not going to go back and modify it retroactively.

So just because you lost your job six months ago and you go in today and you say, "Well I haven't been able to pay and I haven't paid for the last six months," that doesn't really matter. You know, you still owe that child for obligation up until you file your papers and go in to the court and actually have that order of modification.

So don't just stop paying. You still owe that child support obligation. So you can probably go on to the YouTube and take a look at that video. You probably have to search "Rocheleau." [laughs]

Margaret Pickard:  Or search on the Facebook while you're at it.

Stacy Rocheleau:  Rocheleau. It may also be upon our...

Margaret Pickard:  On our website, it is.

Stacy Rocheleau:  On our website.

Margaret Pickard:  So Divorce War Radio redirect you again to Rocheleau Law. And I think it's important to understand the financial consequences. As Stacy said, the court doesn't look backward, so hindsight is no good here because you cannot look back and say, "Oh my job went down, my income went down a year ago or six months ago, and now Your Honor, I want you to go back and look backwards." A judge doesn't do that. They only look forward so you need to make that change right away and for a lot of people that can be significant.

Stacy Rocheleau:  It can be.

Margaret Pickard:  People are making a lot less today than they were.

Stacy Rocheleau:  It can be significant, and let's just talk a little bit about it while we're on the topic of child support.

We get a lot of questions on how much child support will I be entitled to or how much child support will I have to pay, and I think it's very important for our listeners to understand that child support is set by statute. It's just straight number.

If you have one child, it's 18 percent, two children, it's going to be 25 percent, and this is the percentage of gross income, not net, so don't look at the number that you get that you deposit into the bank. We're looking at the gross number. Three children is 29 percent. Four children is 31 percent, and then it goes up two percent for every child thereafter.

Now there are some reasons to deviate from that number, but other than that, it's just going to be a straight across the board number and that's the payor.

If somebody has primary custody, we're just looking at a straight percentage. If we have a situation where there is joint custody, then what we do is we take a percentage of the higher earner's income, the percentage of the lower income and we do the math and we subtract one from the other, and then the higher amount pays to the lower amount, and that's just an offset calculation that we do, but other than that child support is a pretty straightforward number.

We're just looking at the income and we do the percentage and they're stuck with paying what they're stuck with paying. So if the gross income goes down or you are laid off from your job and you have zero gross income, you really need to go in and file for a modification of child support right away because otherwise arrears are going to start accruing, and on top of those arrears the statute provides for a 10 percent penalty as well as statutory interest.

So it's not just the child support that is going to be owed, but there are some penalties and interests that are going to be tacked on right along with that. So if anyone out there is in the situation where they've got a child support order and it needs to be modified down, you need to get in there and modify it quickly because, like Margaret said, the courts are not going to look back. They're only going to look forward.

Margaret Pickard:  And it's not dischargeable on bankruptcy as I think a lot of people think, "Oh, I'll just go in and discharge it as debt." It's not one of those dischargeable issues.

Stacy Rocheleau:  That's right and Scott will talk a little bit more about that next week.

Margaret Pickard:  And so let's talk about some of the deviations. What are the basis for changing your child support obligation? As Stacy mentioned, it's a percentage. In addition to percentage, there is a presumptive maximum amount that's set, and that's on the Nevada Supreme Court's website if you want to take a look at that, but there are some basis like she mentioned if there is a good reason the court might deviate like expensive child care, health insurance cost, educational needs of a child, things like that. What about things like private school though, Stacy?

Stacy Rocheleau:  Private school, really Margaret isn't a reason to deviate unless the parties will agree to it. The judges in our district are proponents of the Clark County Public School system and you put your kids in public school, and if you want to put them in private school, then you can agree to do that, but they're not going to require a parent to pay for or even share in the cost of public school regardless of the school that that child goes to, but there are reasons to either go up or down from that percentage that I mentioned.

Health insurance is probably the one that we use the most. You know, well, number one, in Nevada, you're required to maintain health insurance on minor children and one of the parties hopefully has insurance through their employer, and unfortunately sometimes that comes at a cost.

Margaret Pickard:  A huge cost for a lot of parties.

Stacy Rocheleau:  It can be, and so what the court will do is the court will require the parties to split that cost equally so depending on who is paying out of their paycheck for that health insurance that child support amount can go up or down accordingly. So that is one of the things that we use the most to deviate is health insurance.

Margaret Pickard:  What if I had a child support obligation against me and I can escape it. You know, I don't pay and I don't pay and my kid's 20 years old. You know, does that let me get out of it then? I mean, can I run away from it essentially?

Stacy Rocheleau:  Absolutely not. No, absolutely not. Those are the arrears that I was talking about. Those continue to add up and add up and add up, and then again the penalties and the interest... it's funny I had a client one time. I was doing her divorce, and she said, yeah, she said, "My dad never paid my mom." She said, "I was getting married, and my dad was afraid to come to my wedding because he was still...

Margaret Pickard:  [laughs]

Stacy Rocheleau:  Paying off his child support obligation to my mom," so it stays on forever. It's like cockroaches. They just will not go away, and the state can enforce it, and there is a lot of different ways that the state will enforce it.

We can do mandatory withholding. So we can garnish your paychecks, garnish an appointment benefits. They'll take your tax return, any refund that you're going to get from your tax return. They will place liens on any real property assets that you have. They can suspend your driver's license and they can also suspend any professional licenses that you have.

So, Margaret, you and I and then Peter James, Divorce Attorney James, who is going to come on a little bit later, we have bar licenses with the State of Nevada. Also accountants have license, architects have license, any type of professional license that you have, that can be suspended. They'll suspend or they will revoke your US passport. So that trip to Cabo that somebody you just planned...

Margaret Pickard:  Not going to happen.

Stacy Rocheleau:  They are not going to go if they owe back child support, and I've seen that happen, and it's enforced, and they've had to cancel their trips, and then also the party that is owed the child support can actually take the non?paying person into court and hold them in contempt, and contempt can mean extra money or contempt can mean jail time.

Margaret Pickard:  Yeah, I've seen people taken into custody and cuffed in court...

Stacy Rocheleau:  Yeah.

Margaret Pickard:  Because they haven't made their child support obligations.

Stacy Rocheleau:  Yeah. It's pretty scary. You know, they don't realize that, you know, when we say, "Hey bring your toothbrush," that we really mean bring your toothbrush. You're not going home tonight. You're going to sit in jail, and there are some judges out there that will make you sit in jail and think about how important that is to pay that child support obligation.

Margaret Pickard:  And it's amazing how much money people can come up with when they are sitting in jail whereas when they don't have that over their head, they are not able to find it, but the reality is that our economy is difficult and so, you know, if you're in a situation where you have a child support, a huge child support obligation that may have been based on a past higher level of income and you have more of it than a 20 percent change in your income, you should go in and ask the court for a reduction.

Stacy Rocheleau:  And that's really important to note, Margaret, that you do need to have more than a 20 percent change in income because if you go into court and you just lost just a couple dollars or something here or there, that's not enough. You need to have a 20 percent change, and the judge will actually whip out his or her calculator and do that calculation. So, it's really important. You can be liable for the other person's attorney's fees if you go into court and you don't meet that 20 percent threshold.

Of course, where there's a loss of a job and you're on unemployment or you've got no unemployment, you've got zero income, that is greater than a 20 percent reduction. But other than that, you want to do the calculations and make sure that you've got that 20 percent change in income because you do need that 20 percent change to make that modification.

Alternatively, child support can increase. Every three years you have the opportunity to go into court and have your child support reviewed, and that does not require any type of percentage. You can just go and say, hey, judge, I want to take a look and we want to have our child support reviewed.

Now, in this economy someone just wanting that three year review runs the risk that there will be a decrease rather than an increase like there was in years past. People would go in and say, it's been three years. Let's go in and see how much more...

Margaret Pickard:  And it's not automatic, right?

Stacy Rocheleau:  It's not automatic. We call it the automatic, but it's really not automatic. It's only to petition the court for the review. The court will allow you to come in and will take a look at everybody's W?2s and tax returns and pay stubs and see how much child support should be set at for the next three years. So, it's not really automatic, but you do get a free shot at coming into court and taking a look to see if it should be modified, either upward or downward.

Margaret Pickard:  And I have a lot of people come in and they say, well, I'm not worried about my child support because I pay it every month and I give them a check or I pay them cash. And I always say, wait a minute. If you're paying child support or even receiving child support, I will tell you I am an advocate of letting the Child Support Enforcement Division of the district attorney's office collect it because they are an independent record keeper.

I know I've been involved in situations where we will walk into court and the person has actually made it the month before it's due, but because we're going back a few years in accounting, they won't get credit for the month it's due for whatever reason. And so, they're trying to get their old bank records, and now they don't have a record of what they paid, and they paid some cash one time.

So, I'm an advocate of making sure that it is paid through an independent source, or you set up a bank account that just has the money for child support that's always paid out. I love the DA's office for that. They give you a little card. It's like a debit card.

Stacy Rocheleau:  Yes.

Margaret Pickard:  And you can just go into the grocery store and use it for anything, and it's a great asset to have the district attorney's office track it for you, for safe guarding it. A lot of people have it garnished, and what does it mean to have it garnished, Stacy?

Stacy Rocheleau:  To have it garnished means that it just comes straight out of their paycheck which is better, I think, for a lot of people. It can be better, and it can be worse. Sometimes, there's a small cost associated with that, four or five dollars. And then, the questions comes, who pays that four or five dollars? Does the payer pay it or does the payee pay it?

Margaret Pickard:  Right.

Stacy Rocheleau:  So, that's the down side of direct garnishment. Another down side of direct garnishment, especially when you do it through the DA's office, is there's a time lapse.

Margaret Pickard:  Right.

Stacy Rocheleau:  Say your child support's due on the first. If that payer is great about paying you on the first, take it on the first because otherwise if it has to go through the garnishment system, the employer can only garnish according to their pay schedule. If they get paid once a month or twice a month or every third Thursday or the first or second Thursday or however they get paid, you're going to be subject to that employer's pay schedule.

So, sometimes it's good and sometimes it's bad. It can cut both ways. You really need to take a look at your situation and determine, do I want this garnished or do I not want this garnished?

Margaret Pickard:  So, there's a lot that we've been talking about tonight about money and child support. Now, in the next segment we're going to be coming back on, and we're going to talk a little bit about child custody, joint custody, post decree custody changes. So, make sure you join us here at KNUU Radio, 970KNUU.com.

Margaret Pickard:  Welcome back. Today is the good night where we're talking about child support and also child custody. So, we just got done talking about the basis for child support, and we talked about the fact that it's based on a calculation of your percentage of your income and also then a maximum.

We also talked about the fact that if you've lost a job or had a salary decrease, you need to go in and ask the court for a reduction and do that right away. The second thing, and maybe the part that's really juicy tonight is we want to talk about child custody orders, and you're an expert in child custody, Stacy. So, tell us a little bit about what is the difference between joint custody or primary physical custody. What's the difference between joint custody and legal custody?

Stacy Rocheleau:  That's a very good question. I think a lot of people get that confused, Margaret, because there are two different types of custody. We have legal custody, and then we have physical custody. Now, legal custody is usually joint. The courts will usually order that to be joint, and basically legal custody is who is making the decisions for the children, their health care decisions, their education upbringing, just any day?to?day decision for the children and that's legal custody.

Physical custody is who does the child reside with the majority of the time. And so, for physical custody we can either have a joint physical custody situation, or we could have a primary and a non?custodial parent. So, that would be one parent has the child the majority of the time.

In Nevada, the majority of the time doesn't mean more than 50, actually. The Supreme Court came down a few years ago and said, "No, the majority of the time is more than 40 percent of the time." So, right now in Nevada we really look and we count the days in the scope of a year to see if someone has more than 40 percent of the time during the year, that is still a joint custody situation.

Now, why custody is so important in the child support realm is that child support is determined off of what type of custodial situation do you have. So, if we've got a primary custody situation, we go straight to the percentage. If we've got a joint custody situation, then we do that offset that I talked about. It's very important to define what type of custodial situation you have because that is what's going to determine your child support obligation.

Now, I know this isn't real juicy stuff that we usually talk about here on Divorce War Radio, but this is the ammunition you guys need, so this is why this is so important. And we're taking the time tonight to talk about this and why we're going to have Peter James, Divorce Attorney James on in a little bit to give us some of his wisdom and knowledge down in the trenches of what he's got because this is really, really important for you guys to understand and know the differences between these.

Stacy Rocheleau:  What kind of arrangements do our judges look at? I think I get a lot of clients that come in, and they talk about, well, I want 50?50 or I've had a lot of people sit down at the mediation table recently and argue about two or three hours because they want to make sure they're in that 40 percent.

Margaret Pickard:  Yes, split.

Stacy Rocheleau:  So, we actually do litigate over, mediate over a couple of hours.

Margaret Pickard:  We litigate over it, too.

Stacy Rocheleau:  Yeah, we do. A lot of people ask, what is the traditional? What do the judges do here? And I think it's such a hard question because there really isn't a standard of what the judges do. They try to maximize the child's time with both parents, and that can be an alternating week, a 4?3, a 5?2, every other weekend. There's so many variations, and it's also based on a parent's ability to care for their child.

Margaret Pickard:  That's right. That's a big issue.

Stacy Rocheleau:  Yeah, Margaret, you're right. There really is no standard here, especially in Las Vegas. We're in a 24?hour town.

Margaret Pickard:  24/7, yes.

Stacy Rocheleau:  And someone's weekend could be Monday and Wednesday. It doesn't necessarily mean that a weekend is Saturday and Sunday. People might not have off those days. So, when judges are determining custody number one primary, they look at what is in the best interest of the child. And the Nevada legislature has said that number one, the best interest of the child is frequent and continuing associations with both parents. So a schedule that maximizes the child's time with both parents is going to be in that child's best interest.

And so, we don't really look at what does mom want. We don't look at what does dad want. We look at what is in the best interest of the child, and then we look at, OK, what are the schedules of the parties. And we try to maximize a schedule, and this is when we're litigating obviously. This is what I argue to the judge. We try to fashion a schedule that maximizes that child's time with both parents.

Now, in Nevada when we open a divorce case, the judge will always send the parties if they haven't already come to an agreement, a mediation schedule, they'll send them to the family mediation center, and there they will have the opportunity to sit down and devise their own schedule with the mediator. If they can't, then they have to let a judge decide, and that's unfortunate to let a third party decide what type of schedule am I going to have for my child?

Margaret Pickard:  We're going to talk a little bit more about that, and I think it's a great opportunity for us to be asking Peter James, Divorce Attorney James, our next guest. He's going to come in and talk a little bit about the important factors for changes of custody, for custodial division. So, we're going to take a break. Up next we're going to listen to traffic, and then we're going to have a question. Does child support ever change, and does child custody ever change, and what are the circumstances? So, join us in just a few minutes here at Divorce War Radio.

Margaret Pickard:  Welcome back to Divorce War Radio. I'm Margaret Pickard, mediation attorney, here with Stacy Rocheleau, litigation attorney. We're here to talk about child custody and child support. We've been spending the last half hour talking about child custody and child support issues, and we're fortunate tonight to have a special guest. Tell us about it, Stacy.

Stacy Rocheleau:  That's right. Tonight we have Peter James, Divorce Attorney James. Peter James, Divorce Attorney James grew up in Ventura, California. He moved to Las Vegas in 1989 where he went to UNLV and got a degree in English, and then he went on to William S. Boyd School of Law where he got his Juris Doctor. Peter James, Divorce Attorney actually comes to us with a great deal of experience. He is not only a divorce and family law litigator, but he is an appellate attorney as well.

What that means is he actually challenges the judges' decisions and takes those up to the Supreme Court and lets the Supreme Court decide whether or not the district judge was right. So, he's drafted numerous appeals, writs and has handled post conviction petitions with the Nevada Supreme Court. So, Peter James, Divorce Attorney, welcome.

Peter James, Divorce Attorney James:  It's good to be here. Thanks for having me on the show.

Stacy Rocheleau:  We are so excited to have you on tonight. Now, you've actually been in the studio with us for the last half hour, and you've been listening to us talk about child support and child custodies. One question that I think our listeners might want to know the answer to is once custody is set, can that ever be changed?

Peter James, Divorce Attorney:  It can be changed, but the standard the court uses to change custody depends on what kind of custody you have after the decree is entered. If you just have joint or 50?50 custody as it's commonly known, then the court only looks at what's in the best interest of the child. But the court starts off with the position that joint is what's in the child's best interest, and whichever party wants to challenge that has the burden of proof to show that it's in the child's best interest to change the custody.

Stacy Rocheleau:  Oh, OK. So, really when we talk about setting a child custody schedule upfront, that really is very important to determine either a primary non?custodial or a joint situation, is that right?

Peter James, Divorce Attorney:  That is correct because it will affect things that will happen later on. For instance, if you have primary custody and the other party wants to change it, you're actually quite protected under Nevada law because of simply being what's in the child's best interest, if the other parent does not have primary custody wants to change it, they have the additional step of having to prove a substantial change in the circumstances affecting the welfare of the child. So, you've got to have a really big reason to come back to court to change someone else's primary custody.

Stacy Rocheleau:  Oh wow.

Peter James, Divorce Attorney:  Now, things like a drop in the children's grades that's unexplained. If you can explain it and explain it well, then that won't change custody, but if there's a change in child's grades, if there's drug use, either by the child or the parent, that could be cause to change custody.

Stacy Rocheleau:  OK. In your experience and in your practice, have you actually had situation where you had either litigated or mediated someone that has had primary custody and had that changed?

Peter James, Divorce Attorney:  Yes, many times. It all depends on the circumstances. Like I said, you've got to meet the standard, and you've got to convince the judge because with different judges they have different thresholds as to what is enough for each judge to change custody. So, the standard is what the standard is. Everyone knows that it is a little subjective.

Judges are pretty uniform on the really big things. There's Nevada case law saying, like I said before, if the grades drop unexpectedly, that satisfies a substantial change. If one of the parents has been arrested for things like drunk driving, drugs or any other criminal activity, that's going to raise the court's attention.

Stacy Rocheleau:  What about domestic violence?

Peter James, Divorce Attorney:  Oh, domestic violence is one of the biggest things here in Nevada because in the best interest of the child factors under the statute. There are two factors that I call super factors, and these factors are ones that start off with the presumption, if proven, that the other parent has custody, the non?offending parent. And those two are domestic violence and child abduction.

Stacy Rocheleau:  Oh OK. Super factors, good to remember.

Peter James, Divorce Attorney:  So, if you have a domestic violence conviction and you have primary custody, well, the other party can go right back to court, and the court will start off with the presumption that primary custody is going to change until the offending party can come back and say, yeah, but I've got a good reason why it shouldn't.

Stacy Rocheleau:  So, in other words, if I have a domestic violence conviction against me, I have to go to court. Now, the burden shifts to me to prove, right? That's what the presumption means.

Peter James, Divorce Attorney:  Correct. The burden shifts. Now, you don't have to bring yourself back to court. You can do nothing and have the other party take you back, but once the other party does take you back to court, then you're going to be back pedaling and explaining yourself to the judge why the judge shouldn't change custody simply because of a domestic violence conviction.

Stacy Rocheleau:  Now, if parties have, let's say, either joint custody or a primary situation, we have some scenarios where... How does a judge determine what school a child should go to?

Peter James, Divorce Attorney:  If a parent has primary custody, then the primary custodian is the one who gets to choose which school the child goes to. In public school, the school where the primary custodian lives, where they're zoned for. If it's joint custody, generally speaking, if the court is deciding this, it will go to whichever parent has the child more days, on school days. So if a parent has three of the five school days, and they'll schedule it for that parent in that parent's school zone.

If you split the days evenly week on week off, and you both live pretty far away from each other, that's something you're just going to have to either work out or the judge will simply decide and the parents just have to make it work.

Stacy Rocheleau:  Now we also talked a little bit about in the first half ?? private school. Do you have any experience with what the courts will do with private school?

Peter James, Divorce Attorney:  Yes, generally speaking in my experience with private school, if the parents can afford??and I mean well afford??private school the judges have ordered private school in numerous cases that I've had. It's only when the parties are more financially strapped that the courts are hesitant to force both parties to pay.

Now if one party wants the child to go, the court will permit the one parent to put the child into private school over the other parent's objection. But that parent's going to have to foot the entire bill.

Stacy Rocheleau:  So the court won't force the other parent to pay.

Peter James, Divorce Attorney:  Correct, unless both parents can well afford.

Margaret Pickard:  And hasn't it also been true that the child generally has to have been in private school usually for a period of time in order to make that sudden change? To some degree the courts will take that into account. Before they got divorced did the child go to private school? And so do they now have the means to continue?

I think one of the things that we all look at with schools is school seems to be one of those weapons or hot points for a lot of parents. I mean how many of us, just between Stacy Rocheleau and Peter and I, have you had a case where parents will just pull a kid out of school whether or not it's in that child's best interests?

Peter James, Divorce Attorney:  Yes, I've had cases like that before. I had one where the judge actually ordered that the child go to the school in Mom's jurisdiction, in Mom's zone. Then Dad unilaterally pulled the kid out. Let's just say the judge was not too happy that Dad did that with the child, and Dad paid the price on that one because not only was there a presumption but there was a court order.

Stacy Rocheleau:  Oh. Yeah, don't violate those court orders.

Margaret Pickard:  And even when there's not a court order, I think the unfortunate thing is that parents sometimes use the school as a weapon. I've had cases where kids are enrolled in a school they've been going to. First day of school comes and they're with another parent, and let's say Dad pulls them out of their regular school and puts them in a school right next to where he lives because he's moved. Or vice versa. Mom can have done that.

But in the case that I'm talking about Dad did it. It's interesting because that is something that sometimes when parents are embroiled in battle they don't always look at what's in the child's best interests. So what would the court do, then? What's a typical situation if a parent does something like that? Do they just issue an order? You have to go in and file a motion? What's the process?

Peter James, Divorce Attorney:  Well, it all depends on what stage and what the circumstances are because in family court everything is very, very fact specific. But if one parent just pulled a kid out of school, they're going to have to do some explaining to the judge when the other parent brings them back to court.

Now the first thing. The parents should try to work this out without having to go to court. Talk about it, and try to resolve it without using the court system. That's always the best way to do it because you don't want to have to hire attorneys and go back before a court That just keeps on fueling the animosity between the parties.

But if one parent does do that and they go before the court, they've got some explaining to do. Now if they've got a really good reason, then they can give it to the court. But otherwise they could be facing contempt charges if there's an order in place, and they can be facing paying the other side's attorney's fees for their actions.

Margaret Pickard:  That's the big punishment there it seems. You know, it's interesting because I have a lot of people that come into me and say, "Well, my child's old enough to decide for themselves where they want to live.

Stacy Rocheleau:  I was going to ask that, too. What are your...

Stacy and.

Margaret Pickard:  What's your experience?

Peter James, Divorce Attorney:  Well, if you're talking about a 16?year?old, the courts are pretty much straight up on this. The 16?year?old is going to be able to decide where the 16?year?old is going to live unless there's a compelling reason for the court to say no.

It basically goes on how mature is the child? Does the child have a good reason for choosing? What's the child's thought process? And they're going to have the child interviewed at the courthouse by a specialist in the family mediation center to determine these things.

Now starting off at around age 12 is generally speaking when the courts give the child a voice. They will hear what the child wants. As the child gets older that voice becomes stronger and stronger. When you're 12 years old, they'll listen to it and they'll weigh it as a factor. Like I said, a 16?year?old gets to choose absent a compelling reason.

Stacy Rocheleau:  So what's the minimum age that they would look at? Is 12 the magic number or...

Peter James, Divorce Attorney:  I've had a child interview for choice, a preference of where they want to live, for a nine?year?old.

Stacy Rocheleau:  OK.

Margaret Pickard:  I think it's important, too, that I like to tell my clients the kids have a voice but not a choice. So I think, as Peter talks about it, it's a factor they weigh in until the child is quite of bit older to make that decision.

Peter James, Divorce Attorney:  That's correct.

Stacy Rocheleau:  So even the nine?year?old, could that nine?year?old make that decision him or herself or...

Peter James, Divorce Attorney:  No, no. You always have to go through the courts and talk to the judge about this kind of thing. If the parents want to talk to the children about it and stipulate to child custody based on the child's wishes all on their own, that's one thing. But if the matter's before the court, like Margaret said, the child will have a voice but not necessarily of the choice on what's going to happen with custody.

Stacy Rocheleau:  So custody could actually change as the child gets older from, say, even a joint situation to perhaps a primary situation or vice versa depending on that child's choice.

Peter James, Divorce Attorney:  Yes, in fact there's what's called "teenage discretion," and I just had a case recently that the parties agreed that the child will have teenage discretion. The child was 16 turning 17, and they didn't feel like arguing over where the child should be because they felt they had a mature enough 16?year?old who has a car and a driver's license and can drive anywhere she wants to go.

Stacy Rocheleau:  So now with that change in custody, then that also makes a change in child support. Is that correct?

Peter James, Divorce Attorney:  That's correct. Nevada is actually pretty strict on this rule. They will go down and they will calculate the 60/40 rule, the rule under a case called Rivero versus Rivero, and parties all the time fight over that 60/40 rule. If the other side has primary, they'll want to show that they have 40 percent or more of the time.

If it's a joint situation and one party's getting a lot of the time, they're going to want to show that they have more than 60 percent to get primary, and a lot of this is really over child support.

Stacy Rocheleau:  That's unfortunate. I think I get a lot of people, too, they come in. They're not really interested in the time split as they are as what is the financial ramification of that time split. And so, you probably see that, especially having done appeals in terms of the issues people deal with in terms of the custody arguments they get into.

I think it's interesting, too, to talk about before we run out of time, extracurricular activities. What is your experience with how the courts treat extracurricular because I have a lot of clients, as I know we all do, where baseball or soccer becomes that tool now to fight over.

Margaret Pickard:  Dance, gymnastics, even band.

Stacy Rocheleau:  So, what does the courts do about that?

Margaret Pickard:  All these things are very costly.

Peter James, Divorce Attorney:  Well, my experience is the courts like the children to be involved in extracurricular activities. For younger children they usually don't let it interfere with the other parent's time share.

As the child gets older or gets heavily involved in certain activities ?? like you've got a superstar gymnast or a superstar baseball player ?? they will allow more and more time to be spent on the other parent's time, the other parent being the one that doesn't necessarily want the child in the activity, because it does take away from parent's time share, especially during the week when you work. You don't get to see the kids because the other parent enrolled the child into an extracurricular.

Now, as far as paying for it, that's also a really big hot topic. Generally, the way the courts rule on this is the parent who enrolled the child gets to pay for it. And if the parents both agree, then they split it.

Margaret Pickard:  OK. Interesting. Now, in talking about changing custody, there's a lot of recoupling that goes on after a divorce. Dad will get a new girlfriend. Mom will get a new boyfriend. What happens when that child in that new... not even necessarily step?parent yet, but just new boyfriend or new girlfriend, they clash. Can the other parent bring the other parent back to court and say my child doesn't really like dad's new girlfriend. So, I need to have primary custody. How would that work?

Peter James, Divorce Attorney:  Well, a significant other is always a major factor in the child's life when their parents remarry or have a live?in boyfriend or girlfriend, but that alone is not cause to change custody. There has to be something tangible. If someone brings the matter back to court simply because the child doesn't get along with mom or dad's new boyfriend or girlfriend and there's simply not a lot more than that, some kind of abuse going on, something really, really heavy to hang your hat on, that's not going to be enough to change custody. You just have to work that out.

Stacy Rocheleau:  Not just a personality clash. Well, Peter, we really appreciate all the input you've given us. How can people get a hold of you?

Peter James, Divorce Attorney:  You can contact me at 914?0400 at the Rocheleau Law Group.

Stacy Rocheleau:  You can also learn more about Peter at DivorceWarRadio.com, and we'll redirect you to our website, Rocheleau.com. Remember to join us after a commercial break. We'll be coming back to talk about our celebrity focus. Don't go away. We'll find out who is in the news for custody issues.

Margaret Pickard:  Thanks, Peter, for joining us and we'll see you after traffic.

Peter James, Divorce Attorney:  Thanks for having me.

Stacy Rocheleau:  Welcome back. You're on the air with Margaret and Stacy. We're here every Wednesday from five to six p.m., 970 AM. If you have any questions or issues you'd like to talk about, please email those to us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it . Or if you'd like to set up a more private meeting with either Peter James or myself or Margaret. You can always call our office at 914?0400, and we'd be happy to sit down and talk with you.

We talked a little bit tonight about child custody and some of the different definitions. We also talked to you about child support and how that is set and how that can be changed and also how child custody can be changed. We really want to thank Peter James for being on and giving us some of his experience and his wisdom.

Margaret Pickard:  I have to say, we consider Peter like our walking encyclopedia in the office. Whenever we have a question, he knows exactly what number it is.

Stacy Rocheleau:  He knows exactly everything.

Margaret Pickard:  Everything. He's brilliant. He's brilliant. So, we're excited to have him and that he's willing to come on and share his knowledge with us tonight. So, let's talk about celebrities in the news.

Stacy Rocheleau:  Yes, who is in the news this week?

Margaret Pickard:  Sarah Palin's daughter is suing her boyfriend for $1,750 a month for a 19?year?old...

Stacy Rocheleau:  Is this Bristol Palin?

Margaret Pickard:  That's Bristol with her little baby, and she's... not so a little baby any more but young son, and they've been involved in custody issues, and she's seeking full custody. That will be interesting to see what happens because, as I recall from news reports, he really hasn't done anything wrong necessarily. There's no domestic violence like what we talked about. There's no significant things that jump out at me to say he's not entitled to see his child on a regular basis, and they have joint custody.

Stacy Rocheleau:  As long as he doesn't leave the Playgirl Magazines around.

Margaret Pickard:  Ah, that's true. He has posed for Playgirl Magazine, but I think it's interesting, so $1,750 a month. And a lot of people say, he's only 19 years old, but he is doing a lot of publicity. I don't know how much he posted for that. I don't know how much he got. Other people, we've got Mel Gibson in the news.

Stacy Rocheleau:  Yes. Now, Mel Gibson is not necessarily a money fight. That's more of a custody battle, and that is one where we've got a domestic violence issue. I don't even know how to say his girlfriend's name.

Margaret Pickard:  Oh, yeah, Grigorieva. They have a little daughter named Lucia. Unfortunately, for Mel Gibson she's using all of his rants and his domestic violence against him, arguing that he shouldn't be allowed to have custody of his daughter. With his frequent rages, he's actually caused some injury to her and her other family members, and she's brought up several of those instances, and that could, in Nevada anyway, cause him to lose custody just as Peter was telling us. That's one of his super factors, it's domestic violence. And so, in that case Mel Gibson could be facing losing custody of his daughter.

Stacy Rocheleau:  That's even going beyond what we've been talking about the last few weeks with Charlie Sheen because Charlie Sheen's got some drug issues or alleged drug issues and some other points, but Mel Gibson has literally come out and made threats that have been recorded against his girlfriend, Grigor... I guess we don't have to say her name but his girlfriend. And it's really become a huge issue because it's also against his family members.

And so, that's a real problem, and we talked tonight about the fact that domestic violence is one of those factors that the court looks at.

Margaret Pickard:  Yes. It's a super factor as Peter talked about. And so, be careful about what you say and what you do, also. Let's talk about the tip of the week. What's our tip of the week, Stacy?

Stacy Rocheleau:  Well, our tip of the week is Cocoa Puffs for dinner does not constitute a change in custody.

Margaret Pickard:  I think we bring that up because we have so many people that come in and say, well, my ex lets them play video games and watch television all the time and eat Cocoa Puffs for dinner.

Stacy Rocheleau:  Or play Rock Star at 4:00 in the afternoon or eat like some junk food, Cheese Puffs.

Margaret Pickard:  Yeah.

Stacy Rocheleau:  And the reality is our judges see some really severe cases of child abuse. And so, when we're talking child abuse and child neglect, we're talking very severe cases. And so, really the reality is, as I've talked about in the past, there's mom's house and there's dad's house, and there's different rules at each.

That may mean that your child goes to bed at midnight at the other parent's house, and if it's not affecting their grades, that really isn't a basis for change of custody.

Stacy Rocheleau:  And that's OK, right, Margaret?

Margaret Pickard:  It's absolutely OK because the reality is that we have to give our kids permission to enjoy both parents' houses as long as it's not a threat to our child, an objectively verifiable threat. It's actually healthy for our kids to experience other environments, so we really need to be supportive for our children's own health and to really get some security for our children.

I think that the things that we've talked about tonight are so important for all of our listeners because while you may not be involved in a direct custody dispute, chances are that you have family or friends who are. You're really the cheerleader there. You're the person that can be a wealth of information to those people going through those issues and also to help them and advise them and help the children through these issues, these times of conflict because we want to keep our kids out of the middle of it.

Stacy Rocheleau:  Yeah, I think that's very important, Margaret. A lot of people don't realize or acknowledge the fact that even though they are going through the divorce or they are going through the child custody battle, the children are going through it, also. And those are what we really need to protect. That's why the court looks at what's in the best interests of the children when it's deciding custody and when it's deciding who should the child reside with and who should have the primary decision making over the children .

Margaret Pickard:  And for heaven's sakes, don't ask your kids where they wished they would live. Where do you want to live, with mom? Don't ask your kids those kinds of questions because that is very, very difficult for children. It puts them in direct loyalty binds. It causes splitting. It causes a lot of things, a lot of long?term consequences, if you get your child caught in the middle.

Research tells us that we just need to provide supportive environments in both homes, so no matter how much time you have with your children, enjoy those moments with your children and really think about what can I do to form a strong bond because that's what those kids need.

So, we're so grateful that you joined Stacy and I tonight. If you have more specific questions or you have a particular matter you'd like to discuss with either of us or our guest tonight, Peter James, make sure you give us a call at 914?0400 or reach us through DivorceWarRadio.com.

Stacy Rocheleau:  And be sure to join us next week where we're going to discuss bankruptcy and divorce. Those often go hand?in?hand. We have another special guest, attorney Scott Smith, who is a practicing bankruptcy attorney here in town. So, join us next Wednesday at 5:00 p.m. here at KNUU 970 AM.

Margaret Pickard:  Good night everybody.

Call Rocheleau Law Family Law Attorneys at (702) 914-0400 if you have any questions regarding the following radio show topic