Family and Juvenile

Legal Process for Custody, Visitation and Child Support

Residency Requirement

The person filing, called the plaintiff, must have lived in Nevada for at least six weeks and the child(ren) must have lived in Nevada for at least the past 6 months.

If the parties are unmarried, the plaintiff must file a Complaint to Establish Custody, Visitation, and Child Support. If the parties are married, the plaintiff must file a Divorce action to address custody.

Service

The person filing the custody case will need to have the other party, called the defendant, “served” with a copy of the Complaint, Financial Disclosure and Summons within 120 days of filing the Complaint.

Service refers to having copies of the documents delivered to the defendant. The plaintiff may not serve the defendant him/herself but can have a friend, family member, or process server complete service.

Personal service is required if the defendant lives in Nevada.

If the parties are unmarried and paternity has been established, you MUST file the personal income schedule and business income/expense schedule parts of the Financial Disclosure Form no later than 45 days the summons and complaint are served.

Answering Complaint

The defendant must also file and serve the form with his or her response or answer. Once the defendant is served, he/she will have 20 calendar days (including weekends and holidays) to file an Answer. There may be filing fees for filing an Answer, which vary by county.

If the defendant does not file an Answer, after 20 days a default can be obtained from the clerk’s office. A default means that your Petition will be automatically granted.

Keep in mind that although you must give the defendant the full 20 days to file the Answer, he/she can still file an Answer even after the 20 days if you fail to file a Default. It is advised that you obtain a Default as soon as the defendant’s 20 days has passed.

Once the plaintiff obtains a Default from the clerk’s office, he/she can submit a setting slip to get a hearing and have the case completed by the judge.

If Defendant Answers

If the defendant files an Answer within 20 days, a case management conference will be set within 90 days and the case will progress.

If the defendant disagrees with the Complaint and files a Counterclaim with his/her answer, the plaintiff should file a Reply within 20 days.

After the case conference, the parties will be asked to file a document called a Joint Case Conference and will be referred to mediation to try to work out an agreement on their own.

The Joint Case Conference Report is a road map of the case and includes:

Dates papers were filed, the nature of case, what each party wants, witnesses, documents the parties will share, a case timeline, issues the parties on, resolved issues, whether the case is ready for trial, and a statement that the parties discussed settlement
If the parties cannot agree on the contents of the Case Conference Report, each must file an individual Case Conference Report
Both Joint and Individual Case Conference Report fill in forms can be obtained at the self-help center

A Scheduling Order from the court will set deadlines once the Case Conference Report is filed

Mediation

The parties should attend mediation ready to try to settle the case but if the matter is not settled in mediation, pretrial hearings are held on any motions filed by the parties.

Please note that in mediation no judge will be present and the mediation is guided by the parties. Mediation gives the parties the opportunity to work through the case on their own. Once the case progresses to trial it will be a judge making a decision for the parties, not the parties themselves. Coming to a settlement in mediation allows parties the choice to make the decision themselves.

Trial

Prior to trial, each party should complete a pre-trial memorandum, which can be obtained at the self-help center, and file it with the clerk’s office. A copy of the pre-trial memorandum should also be given to the other party.

Following the trial, the “winning” party will fill out a proposed order and drop it in the mailbox for the judicial department the case is assigned to. The mailboxes are on the third floor and you can determine which department your case has been assigned to by looking for “Department” and a letter on the front of your Complaint near the case number.

After the order is signed, the winning party will need to file the order with the clerk’s office and mail a copy to the opposing party with a filed Notice of Entry of Order

After service, a certificate of mailing must be filed.

Motion to Relocate

When a custody order has been granted by a court in Nevada, unless the order says otherwise, a parent may not move out of state with the child unless:

The parent gets permission (in writing) from the other parent to make the moved OR
The parent files a motion with the court that granted custody and the court issues an order allowing the move.
It is NOT necessary to file a motion to request a move within the State of Nevada even if relocating to another part of the state.

In considering a parent’s request to move out of state, a court will consider:

Whether the move is motivated by good faith and whether there is a good personal or business reason to move or whether the move is to interfere with contact between the child and the other parent.
The extent to which the move is likely to improve the quality of the life of the child and the parent.
- When requesting a move, be sure to highlight in detail how you and/or the child will benefit from the move.
- Examples of ways a parent and child can benefit from a move include better job opportunities for the parent, being closer to other family members, better education opportunities for the child, etc.
Whether the custodial parent will comply with a new visitation arrangement.
Whether the non-custodial parent’s motives are honorable in fighting the move.
Whether, if the move is allowed, there is a realistic opportunity for a visitation schedule that will adequately preserve the relationship between the child and the non-moving parent

To file such a request, obtain a Notice of Motion and a Motion to Relocate from the self-help center and file the documents with the court. In the motion, the moving party will need to set forth a detailed argument in favor of the move.

The other party will need to be served but can be served by certified mail or through personal service.
The opposing party can oppose the motion by completing and filing an Opposition with the court within 10 days of being served. The opposing party will also need to attend the hearing the court will schedule on the motion.
Filing fees may apply.

Motion to Modify Custody

Once a custody order has been issued by a court in Nevada, that order may be modified by filing a Motion to Modify Custody.

The moving party should obtain a Notice of Motion and a Motion to Modify from the self-help center, then complete and file the forms with the clerk’s office.
The other party will need to be served but the moving party can serve in person or by certified mail.

The moving party will need to show that there has been a “material change of circumstances” and that the child’s welfare would be substantially enhanced by the change

As in an initial custody case, the court will consider what is in the best interests of the child.
Material changes of circumstances may include substance abuse by one parent, child abuse by one parent, one parent’s inability to care for the child, one parent’s continued refusal to adhere to a current custody order, etc.

If the non-moving party does not agree with the proposed change in custody, he/she will need to file an Opposition within 10 days of being served with the Motion to Modify. The opposition form can be obtained from the self-help center.

Filing fees may apply to both the motion and the opposition.

Motion to Modify Child Support

Child support may be ordered as part of a divorce, a guardianship, a paternity case, or a custody case, or it may be through a separate child support case.

Once a child support order has been issued, the court that issued the order maintains the power to modify that order.

Example: If a child support order is issued in Los Angeles, California, to modify that order, a party will need to make the request to the court in Los Angeles. Unless that court agrees to move the case to another court, they will continue to have jurisdiction over the case.

For an order issued in Nevada, child support can be modified only when:

Three years have elapsed since the last child support order OR
There has been a “material change of circumstances,” specifically a change of at least 20% in monthly income

When someone who has been ordered to pay child support suffers a loss in employment or change in income (where income has changed by at least 20%,) that person should IMMEDIATELY file a Motion to Modify.

If the Motion is granted, the court can modify support back to the date the motion was filed.

Inability to pay the ordered support amount will NOT relieve you of support obligation and failure to pay ordered support for any reason may result in penalties and interest tacked on to accruing child support.
Failure to pay child support can ALSO result in loss of driver’s license, loss of professional license, garnishment of wages, jail time, fines, or more.
Child support arrears are usually NOT dischargeable in a bankruptcy.
Child support arrears do NOT disappear when the child turns 18. They remain until the arrears are paid.

For orders issued in Nevada, to change an order for child support, either party must obtain a Motion to Modify from the self-help center and file that motion.

The non-moving party must be served in person or by certified mail and has 10 days after service to file an Opposition.

Judgments from Other States

Judgments entered in other states are entitled to full faith and credit in Nevada.

To file an order from another state so it can be enforced in Nevada, obtain a Domestication of Foreign Judgment from the self-help center, complete it, and file it with the court.

Domesticating a judgment will ensure that the order is recognized in Nevada but will not automatically give Nevada jurisdiction to make changes to it. For that, a separate request will need to be filed after the order is domesticated.

Enforcing the Order

In most family law cases, when one party is not following the court issued order, the other party may file a Motion for an Order to Show Cause to get the case before the judge so that the judge can make sure the order is enforced in the future.

In child support cases that were initiated by the District Attorney’s Office, violations to the support order should be reported to the DA’s Office.

When filing a for an Order to Show Cause on a child support order, if granted, the court will determine support arrearages.

Accompanying the Motion, the Plaintiff may file a Schedule of Arrearages detailing the amount of any support payments due, the amount received and when any payments were received,

To file, obtain a Notice of Motion and Motion for Order to Show Cause from the self-help center, complete the forms, and file them with the clerk’s office.

Defendant may be served through personal service or certified mail.

The defendant will be required to appear before the court and explain whether he/she violated the order and if so, the reason for the violation.

Emergency Order to Pick Up Child

When one party is not adhering to an existing custody order, a Pick Up Order may be requested to assist the moving party in obtaining the child.

A Motion for a Pick Up Order is only appropriate when:

There is an existing Nevada custody order or an order from another state that has been domesticated in Nevada
The other party is not complying with the custody order by refusing to return the minor children pursuant to that order. This may include removing the children from the state without permission or hiding the children within the state
There is an emergency justifying issuance of a pick-up order

To file, obtain a Motion for a Pick Up Order from the self-help center, complete and file the paperwork and leave a copy of it in the mailbox on the third floor for the department to which your custody case was assigned.

If a party has filed a case in Family Court but has an emergency and feels he/she cannot wait for the assigned hearing date, he/she may file an Ex Parte Motion for Order Shortening Time (called an OST.)

If the OST is granted, the moving party will have to serve the other party with notice of the new hearing date immediately.

Custody

NOTE: Parents should NEVER discuss the case, the issues, or the proceedings with the minor children as Nevada law prohibits it and the judge may sanction a parent for violating this.

Two Types of Custody

1. Legal custody refers to the authority to make legal decisions and access legal records. There are two kinds of legal custody:

Joint (both parties are entitled to access school and medical records, attend child’s events/activities, and make decisions
Sole (one parent is responsible for making all decisions regarding the child
The court usually does not grant sole legal custody unless the requesting party can show that it is in the child’s best interests

2. Physical custody refers to who the child physically lives with and there are three kinds of physical custody:

Joint custody means the parties split time with the child and it can be 50/50 or 40/60 (it does not have to be an even time split)
Primary custody means that the child lives with one party 61% or more time but the other parent has a set visitation schedule.
Sole custody means that the child lives with one parent and visitation with the other parent is at the discretion of the custodial parent. (This does NOT terminate parental rights.)
The party requesting sole custody must show why the other party should have limited or no contact with the child.
The requesting party may request supervised visitation, which can be supervised by a family member or community organization, like Donna’s House at Family Court.

Determining Custody

In determining child custody, courts in Nevada are guided by a principle called “the best interests of the child,” which means that the court’s sole consideration is what it believes is best for the child. In a custody hearing, the court can consider several factors to determine what is in “best interest of the child.” The court may consider:

The wishes of the child if he/she is “of sufficient age and capacity to form an intelligent preference as to his or her custody.” Nevada does not have a specific age at which a child can choose which parent to live with but if the child is mature enough and can state a logical reason for their choice, the court will consider the child’s wishes.
Any nomination by a parent or guardian.
Which parent is more likely to allow the child to frequently see/contact and have a relationship with the other parent.
The level of conflict between the parents.
The ability of the parents to cooperate to meet the needs of the child.
The mental and physical health of the parents.
The physical, developmental and emotional needs of the child.
The nature of the relationship of the child to each parent.
The ability of the child to maintain a relationship with any sibling.
Any history of parental abuse or neglect of the child or a sibling of the child.

Presumption for Joint Custody

Nevada has a presumption in favor of joint custody when parents were married but where not married, the preference is for joint custody.

When the parents were married, the “presumption” means that the court will assume that it is best for the child for the parents to have joint custody. This presumption can be overcome with evidence showing otherwise.

When a court determines by clear and convincing evidence after an evidentiary hearing that one parent committed domestic violence against the child, the other parent, or another person living with the child OR one parent has abducted the child or another child, the court will presume that sole or joint custody by the perpetrator is NOT in the child’s best interest

The parent who has been convicted of domestic violence can overcome the court’s assumption that they should not have joint or sole custody by proving that it is in the child’s best interest for him/her to have joint or sole custody.

Parental Kidnapping

A law known as the “1980 Hague Abduction Convention” was passed to prevent parental kidnapping and applies when:

The child is under 16.
A custody order was issued and the child was a resident of the state where the custody order was issued.
The petitioning parent was given the right to custody.
The other parent wrongfully removed/retained the child from the child’s home country.
The petitioning parent was exercising the right to custody or would have exercised the right to custody if not for the other parent’s wrongful removal/retention.
This action can be brought in either federal or state court.
Participating countries can be found on the US Department of State’s website.

Child Support

Calculating Amount

To determine the child support amount that a parent should pay, Nevada uses a formula based on a parent’s gross monthly income. Income includes salary, consistent overtime, self-employment and imputed income.

Courts prefer to use the formula but if certain criteria apply, a parent’s support can be different than the formula. (See below)
A court can possibly order child support even when the parents have joint custody.
The minimum amount of support that will be ordered is $100.

Obligation of non-custodial parent:

One Child = 18% of gross monthly income
Two Children = 25% of gross monthly income
Three Children = 29% of gross monthly income
Four Children = 31% of gross monthly income
There is a 2% increase for each child thereafter
Minimum amount awarded is $100

Presumptive Maximum Amount of Child Support:

Gross monthly income $0 - $4,235 max is $696
Gross monthly income $4,235 -$ 6351 max is $765
Gross monthly income $6,351 - $8,467 max is $837
Gross monthly income 8,467 - $10,585 max is $905
Gross monthly income $10,585 - $12,701 max is $975
Gross monthly income $12,701 - $14,816 max is $1,043

Joint Custody Child Support

When parents are granted joint custody, courts decide child support in the following way:

First, use the figure above to figure the amount each parent would pay for child support based on the number of children and the parent’s income.

For example, if the parties have two children and the father makes gross income of $1000 per month and the mother earns $2000 per month, the father’s child support obligation would be $250 (25% of $1000) and the mother’s obligation would be $500 (25% of $2000)

Next, determine the difference between each parent’s obligation

Using the example above, subtract the mother’s $500 obligation from the father’s $250 obligation for a difference of $250 ($500-$250=$250)

The parent with the higher income would pay the difference to the other party. In other words, BOTH parents are obligated to provide support but since the parent with the higher income has a larger support obligation, he or she will pay the other party.

Modification Factors

You can adjust the child support amount and request more or less than what the court would order using the child support formula if any of the following factors are shown by clear and convincing evidence:

One parent is paying most or all of the cost of health insurance and/or child care.
The child has special educational needs that result in extra costs.
The age of the child.
When one of the parents has legal responsibility to support others.
The value of services contributed by either parent.
Any public assistance paid to support the child.
Expenses reasonably related to the mother’s pregnancy and confinement.
The cost of transportation of the child to and from visitation if the parent with custody moved the child from where custody was ordered
The amount of time the child spends with each parent.
Any other necessary expenses for the benefit of the child.
The relative income of both parents, which includes income earned by the new spouse(s) of the parent(s) if one or both spouses has remarried.

The child support obligation continues until a child turns 18 or, if still enrolled in high school at age 18, on his/her 19^th birthday.

If a child is disabled, child support may continue until the child is self-sufficient.
If a child becomes emancipated (by court order, by getting married, etc) or if the parental rights of the parent paying support are terminated, the support obligation ends.

Enforcement

A child support order can be enforced in two ways:

A parent receiving support can contact the Family Support Division of the District Attorney’s Office. The parent will need to complete an application through the DA. The DA will determine if there is past due support, called arrearages, determine how much arrearages are owed, and begin collection of those arrearages. The DA Family Support Office can also assist with finding a non-custodial parent, establishing paternity, obtaining a custody order, and modifying an existing order.
Another option is that the receiving parent can file a Motion for an Order to Show Cause with the Family Court (described below in the section on Motions)

****Failure of one parent to pay child support does NOT give the other parent the legal right to withhold visitation or contact with the child. Even if the other parent is not paying child support as ordered you MUST continue to follow the custody agreement as ordered by the court until the court grants a change in the custody arrangement. Failure to follow the court order can subject a parent to contempt of court, which can result in fines and potentially jail time.****

Paternity

Before a father can request custody, visitation or child support, he must be determined under the law to be the father of the child, which is also called establishing “paternity.”

When Paternity Already Established

Paternity is already established (meaning that the father does not need to do anything extra to establish paternity) if:

The father and the child’s mother are legally married or were married to each other when the child was born or conceived
The father’s name is listed on the birth certificate
A court order names the individual as the child’s father
The individual has legally adopted the child

Establishing Paternity

If paternity has not been established yet, an individual can establish it by filing a Complaint to Establish Paternity, Custody, Visitation, and Child Support. A Complaint to Establish Custody can be filed by the mother, the presumed father, or an interested third party such as the District Attorney. An individual can also include a request to establish paternity as a part of another child related proceeding such as guardianship, child support, or custody

Evidence that can be used to establish paternity includes:

The man and the child’s mother lived together for at least 6 months prior to the child’s conception and continued to live together through the period of possible conception
Before the child’s birth, the man and the child’s mother attempted to marry each other even if the marriage was invalid provided the child was born during or within 285 days of the marriage
The child was received into the man’s home and the man openly holds the child out as his own
Results of DNA testing prove the man is the father
The father voluntarily acknowledging paternity by both parties signing a notarized Affidavit of Paternity

Divorce/Annulment

Requirements for Filing for Divorce in Nevada

One or both parties must be living in Nevada and have been in Nevada for at least 6 weeks prior to filing the divorce action.

If the parties have any children under 18, the court can only issue a custody order if the child(ren) have lived in Nevada for 6 months before the action is filed.

Nevada is a “no fault divorce” state. This means that there does not need to be cruelty, cheating, or any other bad behavior from one spouse. In Nevada, there are only three reasons a person can legally request a divorce and those are:

Insanity of one spouse lasting at least 2 years before the divorce was filed (the insanity should be documented and diagnosed by a professional);
The parties have lived separate and apart for at least one year without moving back in together; OR
Incompatibility is the most commonly used grounds for divorce. Incompatibility simple means that the parties are no longer a good match.

Mandatory Parenting Classes (Clark County only)

If the parties have children under 18 and are filing in Clark County, the parties MUST both complete a 3 ½ hour parenting class within 45 of the defendant receiving the complaint or petition. (This class is only required in Clark County.) If your county requires the class:

The parties may attend the class separately and may take the class online.

The Decree of Divorce will NOT be granted until both parties have filed a Certificate of Completion for the course.

The course is offered by Palo Verde Child and Family Services (243-4357) or Family Solutions (395-8417) for $40 per parent. There are also online providers of the course.

Fee waivers for the class can be obtained through the court.

The course is available in Spanish.

The parties may request waiver of program attendance but they must have a good reason for it. Waiver is rarely granted.

If one party has not responded to the divorce and is refusing to take the class, the court may still allow the other spouse to proceed as long as the cooperating spouse has attended the class.

Procedure for Filing a Joint Petition

Complete a Joint Petition for Divorce packet (found at your local court or at Supreme Court), which will need to be signed by both parties.

Both parties must agree on ALL issues:

The grounds for divorce (most common being incompatibility.)
If the parties have a child(ren), the parties’ agreement as to child support, child custody (both legal and physical custody), visitation, holiday schedule and who will provide medical insurance. You may wish to set the times and locations for custody exchanges in the order.
Designate which party will claim the child(ren) on income taxes. One party can receive the deduction(s) , the parties can alternate which party claims the tax deduction or if the parties have more than one child, the parties may split the deductions until one of the children turns 18, at which time the parties alternate who takes the remaining deduction.
How the parties have agreed to divide their community property and community debts.
The parties’ agreement as to spousal support/alimony.

Have a third party who knows one of the spouses complete and sign, before a notary, the Affidavit of Resident Witness.

File the petition packet with the Family Court in your county. The packet should include a Coversheet, the Joint Petition for Divorce, the Affidavit of Resident Witness, and if the parties have children, a Child Welfare Identification Sheet.

If the parties are filing in Clark County and have minor children, do not forget to attend the required COPE parenting class and file your certificates of completion with your petition. Residents of other counties do NOT need to attend the class.
There is a filing fee, which varies by county, but if you have low income, you can apply for a fee waiver.

Submit a copy of all filed documents AND the original Decree of Divorce to the judge assigned to your case.

Decree of Divorce should include the parties’ agreements as to child support, custody, visitation, property/debt distribution, alimony, and whether the wife will have her maiden name restored.
The Decree of Divorce will NOT be filed until the judge signs it.
Once the Decree of Divorce is signed, file the Decree with the clerk’s office at your local court.

Procedure for Filing a Contested Divorce

Obtain a Complaint for Divorce self-help packet from your local court or from the Nevada Supreme Court.

In addition to the Complaint, the person filing the divorce (the plaintiff) will need to complete a Financial Disclosure Form. This form MUST be filed and “served” to the other party (the defendant) within 45 days of when the defendant is served with the summons and complaint.

Terms of the Complaint

The plaintiff will include in the Complaint the terms that he or she wants in the divorce.

The plaintiff should be as specific as possible with his or her desired divorce terms.

If the parties have children, designate both legal and physical custody as well as how much child support should be ordered and which party should pay. For additional information on custody and child support, refer to the Custody, Paternity, Child Support page.

If seeking alimony, specifically outline the reasons for alimony.

When dividing property and debts, include only the last 4 digits of account numbers.

Include all property of monetary value that was acquired during the marriage (real estate, vehicles, boats/RVs, jewelry, electronics, furniture, etc.) even if that property is titled in only one party’s name.
May also include pets or other items in dispute that are not of high monetary value.
Include all debts acquired during the marriage.
Note that the court may include debts in the decree of divorce but lenders are NOT bound by such orders. Unless the debt is refinanced in only one party’s name, the lender can still try to collect that debt from both parties even if the debt was “awarded” to only one party in the divorce.
One spouse may request that the court order that, within a set period of time, the other spouse attempt to refinance a debt in his or her name alone. However, a lender is not bound to grant the refinancing and can refuse to remove the requesting spouse’s name from the account.
If there are no debts and no property to divide, say so in the complaint.

When crafting a child custody/visitation schedule, include a holiday schedule and designate who will transport the child, where exchanges will occur, and the time of exchanges.

Holidays often included are: New Year’s, Easter, Memorial Day, 4^th of July, Halloween, Thanksgiving, Christmas Eve, Christmas, Mother and Father’s Days, and birthdays.
Can include any time off from school such as Martin Luther King Day, President’s Day, Veteran’s Day, Labor Day, and Staff Development Days.
If child(ren) are of school age and the parties do not live within the same school zoning area, the Plaintiff may wish to include which school the child(ren) will attend.
If child(ren) are of school age, a schedule for winter break, spring break, and summer vacation should be included unless the parties intend to maintain the same schedule year round.
If the parties have minor child(ren), don’t forget to designate which party will be entitled to claim the tax deduction(s) for the child(ren.)

Have a third party who knows the client complete an Affidavit of Resident Witness stating that you have lived in Nevada for more than six weeks..

File the Coversheet, the Complaint, the Financial Disclosure, the Summons, the COPE Certificate of Attendance (if the parties have children and live in Clark County) and the Affidavit of Resident Witness with the court in your county.

A Joint Preliminary Injunction can be filed if there are concerns that the other party will sell or dispose of community property, harassing or stalk the other party, or take the parties child(ren) from the state. A Joint Preliminary Injunction becomes effective against the other party after it has been served and lasts until final judgment or Decree of Divorce is entered.

Serving Your Spouse

The defendant will need to be “served” with a copy of the Complaint, the Financial Disclosure, and the Summons within 120 days after the Summons is issued.

To complete service, the defendant will need to personally receive copies of the paperwork. The plaintiff cannot serve the defendant but can have anyone over 18 serve the documents including a friend, a family member, or a paid process server.

An Affidavit of Service must be filled out by the person who did the service and then filed with the court.

If the defendant lives out of state, file a Motion and supporting Affidavit for Out of State Service before having the defendant personally served in his or her state.

If the defendant cannot be found in Nevada after trying multiple ways to find him or her, the plaintiff can ask the court for permission to serve by publication.

To request publication, fill out an Affidavit for Service by Publication describing where and when the defendant last lived. Also complete an Affidavit of Due Diligence describing the ways you tried to fins the defendant. Submitted these papers to the judge assigned to your case along with a filled out Order for Service by Publication.

If the request is granted, you can submit the order to your local newspaper to have the publication run.

If Your Spouse Fails to Answer within 20 Days of Service

The plaintiff may (and should) submit a Request for Default to the Clerk’s Office and complete a Default.

Until the plaintiff actually receives the Default from the Clerk, the defendant may still file an Answer, even if the 20 days post-service period has elapsed.

Once the plaintiff obtains a Default from the Clerk, the plaintiff may either

Submit the Default and a proposed Divorce Decree to the judge OR
Schedule a prove up hearing through the court’s clerk’s office, at which the plaintiff should bring a proposed Divorce Decree for the judge to sign.

NOTE: Defaults are disfavored! Defaults may be set aside within 6 months of entry if the defendant can show good cause.

If Your Spouse Answers and Agrees to Your Terms

The parties may schedule a prove-up hearing (a hearing before the judge where there judge will ask if the information in the Complaint is correct) or request summary disposition (the judge will decide the case without an in-person hearing).

To obtain a prove up hearing, the plaintiff can schedule the hearing through the clerk’s office at their local court.

The plaintiff will need to bring a resident witness or file an Affidavit of Resident Witness.

The plaintiff should have the proposed Decree of Divorce at the hearing and if all is in order, the judge will sign the decree at the end of the hearing.

The Decree must be filed at the clerk’s office

Prepare and file a Notice of Entry of Order and mail the Notice and the Divorce Decree to the other party

File a Certificate of Mailing reflecting service of the Decree to the other party

To request summary disposition

The plaintiff must file a Request for Summary Disposition of Uncontested Divorce

The plaintiff should submit the Request for Summary Disposition along with the Complaint, the Answer, the Affidavit of Resident Witness, copies of the parties’ agreements on child support, custody, property division, etc, and the proposed Decree of Divorce to the judge assigned to the case.

Once the judge signs the Decree, it must be filed at the clerk’s office.

Prepare and file a Notice of Entry of Order and mail the Notice and the Divorce Decree to the other party.

File a Certificate of Mailing reflecting service of the Decree to the other party.

If Your Spouse Answers and Counterclaims

If the defendant files an Answer and Counterclaim, indicating that he or she does not agree with the Complaint, the plaintiff will have 20 days after he or she is served with the Counterclaim to file a Reply.

The plaintiff must file a Notice of Early Case Conference and conduct the case conference within 30 after the defendant has filed his or her Answer.

Following the Conference, the parties must prepare and file a Joint Case Conference Report explaining what happened at the meeting.

A blank fill in form can be obtained through the Self-Help Center.

If the parties cannot agree on the content of the Report, each must prepare and file their own Individual Case Conference Report

Once the Joint Case Conference Report is filed, the court will set a trial date.

Mediation

If the parties have minor children, they may be required to attend mediation. Refer to the court in your county to determine if mediation is mandatory in your jurisdiction.

Mediation can be a useful way to settle a dispute and enables the parties to make their own custody decision rather than allowing the judge to make the decision for them.

The parties can initiate the mediation by either signing a stipulation or by one party submitting a request for mediation.

Parties can select a private mediator or check with their local court to see if the court has a mediation program.

If the parties reach a settlement during mediation, the mediator will help draw up a settlement agreement, which should be submitted to the judge for signature.

In counties that require mediation, an exemption from mediation may be sought when there are issues of child abuse, domestic violence, or if one party is out of state.

Mediation is confidential and the judge will only be told whether the matter settled but not any details of the mediation.

Pre-Trial Hearings

Child custody and child support are usually decided at the pre-trial stage of the case.

All contested issues involving minor children should be submitted to the judge prior to the setting of a trial date.

If child related issues are not settled in mediation, the mediator will usually issue a recommendation to the court and the judge may order an evidentiary hearing on those issues.

Alternatively, a request that the judge consider these types of issues should be made by filing a motion.

After a hearing, the judge will sign an order setting out what the ruling to be included in the decree of divorce.

Prior to the trial, each party should file and serve the opposing party with a Pre-Trial Memorandum. A fill in Pre Trial Memorandum can be obtained from the Self-Help Center.

Post Trial

Following trial, the judge will make a ruling and one party will be designated to prepare the Decree of Divorce.

Once the Decree of Divorce is signed by the judge it must be filed and the other party will need to be served with a file stamped copy of the Notice of Entry of Order and the Decree.

A certificate of mailing will need to be filed once the mailing is complete.

If You Have Been Served With Divorce Papers

If you are the defendant, your Answer MUST be filed within 20 days of service to prevent the court from issuing a Default.

To answer a divorce complaint, the defendant may:

File an Answer agreeing to the terms set forth in the Complaint. If the defendant agrees to all terms in the Complaint and he or she files an uncontested Answer, the parties will need to attend a prove up hearing or they may request a summary disposition to finalize the divorce.
File an Answer and Counterclaim denying some or all of the terms set forth in the Complaint and presenting his or her alternate terms; OR
Default by not filing an Answer but the plaintiff will receive all he or she requested.

Please note that there are filing fees for filing an Answer, which vary by county. If you are low-income, you may can apply for a fee waiver through the court.

Property After Divorce

Community Property

Nevada is a community property state which means that most property acquired during the marriage AND while the parties lived in Nevada or another community property state belongs to both parties.

Property and debts acquired while the parties were married are community property except:

Property inherited in one party’s name.
Funds acquired by one of the parties through a personal injury award or settlement.

Both spouses might have an interest in real property acquired by one party before the marriage if payments were made on the real property during the marriage.

Separate Property Becoming Community Property

Separate property may “transmute” to become community property if:

The property becomes so commingled with marital property that it becomes untraceable;
The title has the names of both parties; OR
The parties use the property to support the marriage or in some other way to show that the parties intent to make it marital property.

When one party owes a business, that business MIGHT be subject to partial division. If there is a business to divide in the divorce, an attorney should be consulted to determine how much, if any, of the business each spouse is entitled to.

Property Acquired in Another State

Nevada does NOT have a “quasi-community property statute” to deal with property acquired in another state.

Nevada follows the “pure borrowed law” approach which means that when there is property that the couple obtained while they were living in a non-community property state, the court will divide those assets according to the law of the state where those assets were obtained.

When dealing with retirement benefits, however, courts will often apply only Nevada law and ignore the pure borrowed approach.

Mortgage

When the parties have a mortgage together, it should be addressed in the divorce but note that mortgage companies are NOT bound by the divorce decree.

The divorce decree should reflect which party is awarded the marital residence and, if applicable, the mortgage on the property.

Simply ordering one spouse to assume responsibility for a mortgage does not necessarily mean that the other party has no financial responsibility. The only way to remove one spouse from a mortgage is for the other spouse to assume the loan or to refinance the loan in his or her name alone. The court does not have the authority to force the mortgage company to refinance or grant a loan assumption and mortgage companies often refuse to release one spouse if the other lacks sufficient income or credit to qualify. However, having the divorce decree reflect that one party is awarded the home and the obligation for the debt may be necessary if the other spouse wishes to purchase a home later on.

**Transferring the property deed to the one spouse will NOT release the other spouse’s financial obligation to the mortgage-it will only take away that party’s ownership interest in the home!!**

Retirement Benefits (401k, Pensions)

If one or both spouses has retirement benefits such as a 401k, a pension plan, etc and ANY contributions to the plan were made during the marriage, the benefits are considered community property to the degree at which they were accrued during the marriage. (Division of retirement benefits is VERY complicated.)

***If you or your spouse has retirement benefits and you would like to divide those benefits in the divorce, it is best to speak with an attorney. The following information should NOT take the place of consulting with an attorney qualified in family law.***

Retirement benefits are usually the most valuable (and sometimes the only) asset of the marriage.

Some retirement benefits must be divided in the initial divorce decree or the nonemployee spouse will forever lose his or her claim to a share of the benefits.

Retirement benefits do not have to be divided if the parties so wish and because division of retirement benefits can be costly and complicated, they may be used as a bargaining chip in the divorce. The employee spouse may consider giving the other spouse additional property or alimony payments in lieu of dividing retirement benefits, which sometimes is an easier and more economical alternative for both parties.

If there is a retirement benefit that is subject to division, a special order called a QDRO (qualified domestic relations order) will be needed. A QDRO creates or recognizes the right of the spouse, called an alternative payee, to receive part of the pension OR assigns an alternate payee to receive all or a portion of the benefits.

Determining the amount subject to community property rules can get very complicated, and usually involves determining what percentage of the plan was paid in during the marriage.
QDROs can also be used to recover child support and alimony payments.
Expert assistance should be obtained in preparing a QDRO and the cost for preparation can be split between the parties.
Pension plan administrators will require a QDRO and plans have varying requirements.
Who pays for the QDRO will have to be determined in advance.

A spouse may have their share of the pension benefit paid much later after the divorce, when the other spouse retires and begins to draw on the pension benefit.

Alimony or Spousal Support

Eligibility

You can request alimony or spousal support in a divorce proceeding.

Alimony is usually only awarded when there is a difference between the parties’ incomes and when one spouse gave up career opportunities for the good of the marriage. The court will consider the following factors in determining alimony:

The receiving spouse’s career prior to the marriage;
Length of the marriage;
The receiving spouse’s education during the marriage;
The receiving spouse’s marketability to potential employers;
The receiving spouse’s ability to support him or herself;
Whether the receiving spouse gave up career options to stay at home with children;
The receiving spouse’s property award; and
The disparity of earnings between the parties currently and the potential future earning disparity.

Types of Alimony

The court can award alimony in a variety of ways.

“Rehabilitative alimony” gives one party alimony payments for a short amount of time so that party can obtain an education or acquire job skills.
“Lump sum alimony” is a sum of money awarded as part of the property settlement rather than in monthly payments.
“Periodic alimony” are payments for an established amount of time.
“Permanent alimony” continues indefinitely, until one of the parties dies or until the receiving spouse remarries. Permanent alimony is rarely awarded.

Alimony IS taxable income.

Modification

Either party can seek to modify an alimony award after it is made.

Only future support payments can be modified, not past support.

An alimony award may be decreased or ended if the paying spouse can show that the financial situation of either party changed. Examples of such changes are that the paying spouse cannot afford the order or the receiving spouse is living with another person.

Periodic support can be changed and the ending date extended if the modification happens before spousal support ends.

Alimony ordinarily ends when the receiving party remarries or starts to live with a romantic partner.

Annulment

What is an annulment?
It is a finding by the court that your marriage was void or voidable. Unlike divorces, Nevada will always have jurisdiction to annul marriages that occurred here.

Void Marriage:
The marriage is void, meaning it is no longer valid without any decree of divorce or annulment or other legal proceedings, if:

Consanguinity between the parties (close blood relation)
Either of the parties having a former husband or wife then living (bigamy)

Voidable Marriage:
A court order is necessary to void a marriage on the following grounds:

Lack of consent for a minor’s marriage, unless he/she continues to live with spouse after 18th birthday
Lack of understanding (an insane person/intoxicated, etc.), unless the insane party becomes sane and continues to live with spouse.
Fraud, unless the parties continue to live together after fraud was discovered

What should I do if I think my marriage is void or voidable?
It is a good idea to seek the annulment even if the statute states that you do not have to (such as the marriage was void). You may file for the annulment even if you have children together (likely to happen in case of bigamy where the first marriage’s divorce was not finalized when the second marriage was entered into). You may also plead for a divorce, in the alternative, if the court finds that your marriage was valid.

Besides an order that my marriage no longer exists, what else can the court address in an annulment case?
The court can issue orders regarding community property and community debt division, spousal support, child custody, visitation, and child support. The Court can address all issues that could/would have arisen out of the divorce case, but the only difference is at the end of the case, the marriage is annulled (treated as if it had never happened), not dissolved.

NOTE: The information contained on this page is for general background information only. If you have a legal question, it is best to consult with an attorney.

Guardianship

Types of Guardianships

Guardianship of the Person

Guardianship of the person allows the guardian to make personal and medical decisions for the ward (the ward is the person over whom the guardianship is granted).
Guardianships that involve minors or adults unable to care for themselves are usually guardianships of the person.

Guardians are required to file an annual report of guardian. A fill in the blank form can be obtained through your local court.
When a guardian has guardianship of the person over a minor child, he or she steps into the shoes of the parent and has the right to make decisions for the child.

Guardianship of the Estate

Eligibility to be a Guardian

Note: These guidelines do not apply to private professional guardians, which have other requirements established by law. If you are seeking guardianship as a private professional guardian, or a guardian who services 3 or more wards not related to you by blood or marriage, FOR A FEE, you are encouraged to consult with an attorney.The guardian must NOT be mentally incompetent.

The guardian must NOT be mentally incompetent.

The guardian must be over the age of 18.

If the guardian is not a Nevada resident the guardian must designate a registered agent.

The guardian cannot have any felony convictions, no matter how old the conviction.

The court will grant guardianship to a person with one or more felony convictions ONLY if all 2nd degree relatives have received notice AND there is no one else who can/will serve as guardian.
2nd degree relatives are parents, children, siblings, grandparents, and grandchildren. Aunts and uncles are NOT 2nd degree relatives.
Even with consents from the parents, if the guardian has a felony conviction there must be notice to the 2nd degree relatives AND a hearing.
The court will NOT grant guardianship to someone with a prior conviction for a sexual crime, even if there are no other relatives to be guardian.
The guardian cannot have been suspended or disbarred from practice of law, accounting, or any other profession that involves managing money.
The guardian cannot have committed abuse or neglect of child, spouse, parent, or other adult.
As with felonies, the court might grant guardianship in this instance only if the 2nd degree relatives have received notice and there is no one else who can serve as guardian.
The court will also consider the amount of time elapsed since the abuse/neglect, the circumstances, and the severity of the abuse/neglect.

If more than one person seeks guardianship, the court will give preference to the following:

Individuals nominated for guardianship by the parent if the ward is a minor child or by the ward or the ward’s relative when the ward is an adult.
The court will give consideration to requests made by a minor ward age 14 or older but the court can choose to ignore the request.

The following, in order of preference for an adult guardianship:

Spouse
Adult child
Parent
Any relative with whom the adult has resided for more than 6 months before the filing of the petition or any relative who has a power of attorney executed by the adult while competent
Any relative currently acting as agent
Adult sibling
Grandparent or adult grandchild
Aunt/uncle or adult niece/nephew or cousin
Any other person recognized to be in a familial relationship with the adult

Any recommendation made by a master of the court or special master pursuant to NRS 159.061 or
Any request for the appointment of any other interested person that the court deems appropriate, including, without limitation, a person who is not a relative and who has a power of attorney executed by the adult while competent.

The following, in order of preference, for a minor guardianship:

Parent
Adult sibling
Grandparent
Uncle or aunt
Any recommendation made by a court master
Any recommendation made by:
- An agency which provides child welfare services, an agency which provides child protective services or a similar agency; or
- A guardian ad litem or court appointed special advocate who represents the minor.
Any request for the appointment of any other interested person that the court deems appropriate.

If there are no family members or friends available to serve as guardian, the Public Guardian may be appointed instead.

The court may also refer the case to the Public Guardian’s Office or a private professional guardian if the court suspects that funds have been taken or that the ward has been mistreated.

Guardianship of Child

Guardianship over a Child

These are usually granted either when the parent(s) are unable to care for the ward or, in the case of estates, when the ward inherits or receives assets.

Guardianships are not permanent and can always be terminated.

Guardianships over minors always terminate automatically when the ward turns 18, even if guardianship is still necessary.
If a guardian wishes to continue a guardianship after the ward reaches 18, the guardian must file for an adult guardianship, which can be started shortly before the ward turns 18.

Guardianship orders will replace existing custody orders.

While the guardianship is in place, the guardian “steps into the shoes” of the parent and has custody, regardless of whether there was a custody order between the parents.
While the guardianship is in place, the guardianship order is the controlling order, not any prior custody order.
Once a guardianship is terminated, prior custody orders are automatically back in effect and all custody and/or visitation orders should be followed.

Guardianship Petitions Without a Court Hearing (Ex Parte Petition)

To file ex parte, the petitioner must have written consent from both parents.

The petitioner may also proceed with only one parent’s consent if:

The father is truly unknown, meaning that paternity has never been established in a custody, support or other case, and no father is listed on the ward’s birth certificate (you must file the birth certificate to show this) OR
If the consenting parent has sole legal and physical custody of the ward (you must file the custody order, even if order is from Nevada) OR
The non-consenting parent’s parental rights have been terminated (you must filed the order terminating that parent’s rights) OR
The non-consenting parent is deceased (you must file a death certificate) OR
The ward was adopted by a single person (the adoption decree must be filed).

If both parents are deceased, guardianship can NOT be granted ex parte and a hearing must be held.

Consents must be in writing, notarized, and less than 6 months old at the time the case is filed.

If the minor ward is 14 years or older, the petitioner must file a consent from the ward.

If there is an open child welfare case before the juvenile court, the guardianship court will NOT grant guardianship without prior consent from the judge in the juvenile court.

Ex Parte Petitioner Process

Complete a Petition for Appointment of Guardianship. You can either have the parent(s) listed as co-petitioners OR simply attach the parent(s) consents to the petition.

See above for the examples of when an ex parte petition can contain only one parent’s consent.

The court will review ex parte petitions more carefully and all necessary information must be provided.

Petition should provide:

Address, birthday, name of proposed guardian and ward;
Relationship between the ward and proposed guardian;
How long the ward has been with the guardian;
Detailed explanation for why the guardianship is needed;
State where the ward lives;
Whether the ward is subject of a custody order and if so, from what state and when was the order issued;
Whether CPS is currently involved with the ward (sometimes referred to as a “432B” investigation);
- If there is an open child welfare case before the juvenile court, the guardianship court will NOT grant guardianship without prior consent from the judge in the juvenile court.
- The petitioner will need to get juvenile court minutes to show that the court approves of the guardianship.
Names and addresses of all second degree relatives which are:
- Parents
- Grandparents
- Siblings (includes half-siblings but NOT step-siblings)
- If a sibling is a minor, that child’s guardian must receive notice and be listed on the petition.
If the ward has assets, a detailed description of the assets.
Petitioner MUST state whether he/she has ever been convicted of a felony, been disbarred/suspended from a field involving management of money, or been convicted or plead guilty/no contest to abuse or neglect (even if the answer is no).
If the ward is 14 years or older, the petition must also include a consent signed by the ward.

File the completed forms at your local court including the Petition, the parents’ consents, a Family Court Cover Sheet, and an Inventory Appraisal and Record of Value (only if seeking guardianship involves an estate).

Filing fees vary by county but in some counties there is no filing fee for guardianships unless the proposed ward has an estate of $20,000 or more.
When your guardianship involves an estate, if you are low income you can still apply for a fee waiver by completing and submitting a fee waiver packet, which can be obtained through your court’s self-help center.
File a copy of the guardian’s identification and identification of the ward. Ward’s identification can be a school ID, a birth certificate, or a copy of the ward’s social security card.
Separate consents from the parents do not need to be filed if the parents sign the Petition as co-petitioners.
All consents must be notarized and less than 6 months old.

After filing the forms, submit the forms and a completed Order Appointing Guardian to the judge assigned to your case. NOTE: if filing in Clark County, the forms should be submitted to the Guardianship Department instead of the judge’s department.

Once the guardianship order has been signed, it will have to be filed and the new guardians will have to appear at the clerk’s office to be sworn in.
At the time of swearing-in, guardians will need to bring completed Letters of Guardianship.

The new guardian will need to mail a copy of the Order and a Notice of Entry of Order to all the second degree relatives (listed above).

If guardianship involves an estate and a blocked account is required, the guardian must take the stamped Letters of Guardianship to the bank or credit union of the guardian’s choice to establish the blocked account.
The guardian MUST file proof of the blocked account, which you can get from the bank when the time the account is opened.
Do NOT forget to get a blocked account! Failure to do so can result in the court terminating/ending the guardianship!

Guardians MUST file a yearly Report of Guardian for all guardianships. When there is a guardianship of the estate, the guardian must also file an Annual Accounting unless the court grants “summary administration.”

Guardianship Petition with Court Hearing

Does not require consent from either parent but the petitioner must make sure that the parents receive notice of the petition.

Complete the Petition for Appointment of Guardian, providing the same information required for an ex parte petition.

File the documents with your court along with copies of the proposed guardian and ward’s identification, and a Citation to Appear, where the Clerk will fill-in the court date. In most counties there is no filing fee for filing a guardianship unless the proposed ward has an estate of $20,000 or more.

Serve all second degree relatives with a copy of the Petition and Citation to Appear. Relatives that must be served include:

Parents MUST be served even if not involved with the child unless:
- Deceased (file the death certificate.)
- Parental rights have been terminated (file the order terminating rights.)
- One parent has sole legal and physical custody or the ward was adopted by a single party (file the order or adoption decree.)
- Father is truly unknown, no paternity established, and no father is on the birth certificate (file birth certificate)
Grandparents
Adult siblings or the guardian of minor siblings (includes half-siblings.)
If there are no surviving relatives to serve, the Public Guardian’s Office must be served.

Service can be completed by:

Personal service at least 10 days before the hearing. Must file an Affidavit of Service from the third party serving.
Certified mail sent at least 20 days before the hearing. Must file a copy of the certified mailing receipts and the return green card or it can be brought to the hearing.
Service by publication but it must be approved by the court. If notice will be done by publication you should plan ahead!! The hearing should be set at least two months in advance because it takes awhile to complete the publication.
- To request to serve a relative by publication, the petitioner must first try to send the documents to the relative at that person’s last known address via certified mail then the petitioner must file and submit to the judge the following:
- An Affidavit for Service by Publication stating the last known address, the date certified mailing was sent to the last known address, and the date the person was last known to reside there;
- An Affidavit of Due Diligence describing at least two things you did to try to locate the relative such as going to the DMV to check records or contacting power or water companies for records; then obtain
  - A signed Order for Service by Publication.
Publication must run for three consecutive weeks prior to the hearing and the final ad must run at least 10 days before the hearing.
Multiple relatives can be noticed through a single publication but a separate Affidavit of Due Diligence will need to be submitted for each person.
Once the Order for Service by Publication is signed by the judge, the order must be filed at the Clerk’s Office and taken (along with the Citation to Appear) to the newspaper to run the publication. You must pick a newspaper in the city where the relative was last known to live.

At the Hearing

The ward MUST appear in court UNLESS the ward is 14 years or older and has signed a consent.
If service to relatives was done by certified mail, petitioners will need to bring copies of certified mailing green cards.
Petitioner will need to bring a completed Order Appointing Guardian for the Judge to sign and completed Letters of Guardianship for the Clerk to administer along with the guardian's oath.
If the parents appear at the hearing to contest the guardianship or if another party objects or files their own petition for guardianship, a trial may be scheduled.
If the case progresses to a trial, the petitioner will need to show that it is in the best interest of the ward for the petitioner to be appointed guardian.
Nevada follows “the parental preference doctrine,” which means that courts prefer not to interfere with a parent’s right to raise their child.
However, the court will expect the parents to have a stable residence, stable income or resources to provide for the ward, no drug or alcohol abuse, and no current criminal involvement.
If the parent fights the guardianship and the court finds at trial that the guardianship is needed, the parent will have to prove that either his or her circumstances have materially changed AND that terminating guardianship would substantially enhance the child's life.
This does NOT apply if the parent consents to the guardianship.
If the guardianship is granted, the Order must be filed at the Clerk’s Office, the guardians are sworn in, and the Letters of Guardianship will be stamped.

Guardianship of Adult

Need for Guardianship

Guardianship may be needed if someone cannot take care of him or herself and/or his or her property. Unfortunately, due to lack of foresight or lack of advice, many individuals fail to make any provision as to how they or their property should be managed in the event they should lose their mental capacity. Thus the need for guardianship.

Please note that the test is whether the person has the capacity to make responsible decisions, not whether the person’s decisions are in fact responsible. Everyone, including older persons, have the right to behave foolishly or make irrational decisions without fear that he or she will be declared incapacitated and fall under the control of a guardian. Furthermore, just because an individual is old, frail, and chronically ill does not in itself mean that the individual is incapacitated and in need of a guardian.

There are three types of guardianship: (1) Guardianship of the Person, (2) Guardianship of the Estate, (3) Guardianship of the Person and the Estate. A Guardian of the Person only has authority to make personal and medical decisions. A Guardian of the Estate has the authority to make financial decisions only. In a Guardianship of the Person and the Estate the guardian has authority over both financial and personal/medical decisions. The courts will remove only those rights that the proposed person under guardianship is incapable of handling.

Finding a Guardian

In the state of Nevada, every county has an appointed public guardian. The public guardian is available when no family members or friends are able, willing or appropriate to serve on behalf of the alleged incapacitated person.

For information about your local public guardian, contact the Nevada Aging and Disability Services Division at (775) 687-4210.

Guardianship Process

Complete a Petition for Appointment of Guardianship. Petition should provide:

Address, birthday, name of proposed guardian and ward;
Relationship between the ward and proposed guardian;
How long the ward has been with the guardian;
Detailed explanation for why the guardianship is needed;
State ward lives in;
Whether the ward has a revocable/living trust, durable power of attorney or nomination of guardian;
Names and addresses of all second degree relatives which are:
- Parents
- Grandparents
- Siblings (includes half-siblings but NOT step-siblings). Note that when a sibling is a minor, the minor’s guardian must receive notice and be listed on the petition.
If the ward has an estate, a detailed description of the assets.
Petitioner MUST state whether he/she has ever been convicted of a felony, been disbarred/suspended from a field involving management of money, or been convicted or plead guilty/no contest to abuse or neglect (even if the answer is no).

File the completed documents along with copies of the ward’s and the petitioners’ identifications with your local court.

In many counties, there is no filing fee for filing a guardianship unless the proposed ward has an estate of $20,000 or more.
If the ward’s estate is worth more than $20,000 but you cannot afford the filing fee, you can apply for a fee waiver by obtaining a fee waiver packet from your self-help center and submitting it.

You MUST file a physician’s certificate describing why the ward needs a guardian.

The certificate must describe the ward’s limitations and how those limitations affect the ward’s ability to care for his or herself.
The certificate must be completed by a professional who is or has treated the ward.

Serve all second degree relatives with a copy of the Petition and Citation to Appear. Relatives that must be served include:

Spouse
Parents
Grandparents
Siblings or the guardian of minor siblings (includes half-siblings)
If there are no surviving relatives to serve, the Public Guardian’s Office must be served.

Service can be completed by:

Personal service at least 10 days before the hearing. Must file an Affidavit of Service from the third party serving.
Certified mail sent at least 20 days before the hearing. Must file a copy of the certified mailing receipts and the return green card or it can be brought to the hearing.
Relatives can be serviced by publication but only if it is approved by the court. If you will need to serve by publication plan ahead! The hearing should be set at least two months in advance because it takes a while to complete the publication.

To serve a relative by publication, the petitioner must mail the petition and citation to the relative’s last known address via certified mail, then submit to the judge:

An Affidavit for Service by Publication stating the last known address, the date certified mailing sent to the last known address, and the date the party was last known to reside there.
An Affidavit of Due Diligence describing at least two different things that you did to try to locate the person such as going to the DMV to check records or contact the power or water companies to see if they have a record.
And then submit and obtain:
- A signed Order for Service by Publication.

Afterwards, the publication must run for three consecutive weeks prior to the hearing and the final ad must run at least 10 days before the hearing. Multiple people can be noticed through a single publication but a separate Affidavit of Due Diligence will need to be submitted for each person. Once the Order for Service by Publication is signed by the judge, the order must be filed at the Clerk’s Office and taken (along with the Citation to Appear and Show Cause) to the newspaper of your choice. Select a newspaper in the city where the relative was last known to live.

Both the petitioner and the ward must appear at the hearing. The ward must appear in court unless you can provide a certificate from the ward’s doctor stating why the ward cannot be present. The court will ask the ward if he or she consents to the guardianship or if he or she wants someone to represent him or her in the guardianship proceedings.

In order to grant the guardianship, the court must find that the ward is “incompetent,” or unable to care for him/herself, and that the petitioner is a right person to be guardian. Petitioner will need a completed Order Appointing Guardian and completed Letters of Guardianship.

If the ward or any family members contest the guardianship, a trial may be scheduled.

If the guardianship is granted, the Order must be filed at the Clerk’s Office, the guardians will be sworn in, and the Letters of Guardianship will be stamped.

Terminating a Guardianship

Guardianships terminate automatically when a child turns 18 OR when the ward dies.

A guardian may NOT move to another state with the ward without first petitioning the court to request permission to move.

If the guardian moves without first getting permission, the court may terminate the guardianship.
A parent may file a Petition to Terminate Guardianship of their minor child.

The packets for terminating guardianship can be obtained at your local court. . The forms will need to be completed and filed, and a parent seeking to terminate the guardianship will need to serve the guardian and the other parent (unless that parent is unknown, dead, his or her rights were terminated, or the parent filing the petition had sole custody).

Service can be effectuated either: personally, with 10 days’ notice before the hearing; or by certified mail, at least 20 days before the hearing.

If the parent consented to the guardianship when the guardianship was granted, the parent only needs to show that he or she can now care for the child.

The court will look for 6 months of stable employment, 6 months of stable housing, no drugs/alcohol issues, and no current criminal involvement/charges.
If the parent did not consent to the guardianship, and the court appointed the guardian after a trial, the parent will have to prove that he or she can now care for the child AND that the guardians can NOT now care for the child.

The court may choose to remove a guardian if:

The guardian becomes disqualified, mentally incompetent, unsuitable, or otherwise unable to serve as guardian.
The guardian of an estate did not properly manage the ward’s assets.
The guardian failed to perform any duty required by law or the court.
It is in the ward’s best interest to appoint another guardian.
The ward has recovered mentally or physically and no longer needs a guardian.

The ward or a non-parent relative may also file a Petition to Terminate guardianship but he or she must serve the guardian, the ward, and the second degree relatives (parents, grandparents, siblings) with the Petition to Terminate.

Service of the family members can be done by personally serving them at least 10 days before the hearing or by certified mailing at least 20 days before the hearing.

Unless the parties agree to terminate the guardianship AND the guardianship is no longer needed or there is an appropriate person to become the new guardian, the court will hold a hearing. The person asking to terminate guardianship will need to show that:

Guardianship is no longer needed or that another qualified person (possible him or herself) has filed a petition to become a new or “successor” guardian AND
That it is not in the best interest of the ward for the current guardian to continue being guardian.

If a guardianship of the estate is ended, the former guardian must file a final accounting:

Within 30 days if the guardian is removed OR
Within 90 days if the guardianship is terminated by any other way.

After the guardianship is terminated, the guardian must return all of the ward’s property to the ward or to the ward’s new guardian (if a new guardian was appointed.)