Litigation

Child Custody And Relocation

Nevada's relocation statute does not apply to parties who share joint physical custody of their minor children; a parent seeking to relocate must file a motion for change of custody and a hearing must be held on the best interests of the child. Potter v. Potter, No. 42488, Supreme Court of Nevada, Sept. 22, 2005.

The mother and father resided in Nevada and were married in 1994. There was one child of the marriage, born in 1995. Thereafter, the parties divorced and shared joint legal and physical custody of the child. They had no custody problems and both parents were involved with the child. In 2003, the mother was offered employment in California for a similar job with higher pay. The mother filed a petition under the state's relocation statute (NRS 125C.200 ) to relocate to California with the child of the parties for the employment opportunity and also to reside closer to a university that provided a nurse anesthesiologist degree, which was not available in Nevada and for which the California employer would pay a significant portion of the cost. The father opposed the motion, arguing that because the parties had joint physical custody, the mother could not apply to relocate unless she successfully moved for primary physical custody. The trial court rejected the father's argument, performed an analysis consistent with relocation factors, and ultimately granted the mother's relocation request. The father appealed, and the appellate court reversed. It held that Nevada's relocation statute did not apply to situations where the parties share joint physical custody. It further held that where one parent seeks to sever joint physical custody in order to relocate, the parent must first move for primary physical custody with the purpose of relocating and that the hearing court must consider the best interest of the child standard in determining whether modification of the joint physical custody arrangement is appropriate.

Separate Property; Child Support

Money for the parties' house provided by means of separate checks to the husband and wife from the husband's parents may not later be claimed as the husband's separate property; the husband's 'economic in-kind' employment benefits of life insurance, medical insurance and a retirement plan may not be included as part of the husband's gross income for the purpose of determining child support. Hayes v. Hayes, S05F0738, Supreme Court of Georgia, Oct. 11, 2005.

The parties were divorced after a trial. During the trial the husband argued that $40,000 provided by his parents to the parties was a gift solely to him and was his separate property. The gift was written as four separate checks of $10,000 each, two payable to the husband and two payable to the wife. The husband argued that two of the checks were made payable to the wife solely to avoid the federal gift tax. The husband also argued that child support based upon his gross income, should not include the 'economic in-kind' benefits provided by his employer of life insurance, medical insurance and a retirement plan. The trial court agreed that the $40,000 in gifts was the separate property of the husband and that the economic in-kind benefits provided by the husband's employer should not be included in the husband's gross income. The wife appealed, and the appellate court affirmed in part and reversed in part. It held that the $40,000 from the husband's parents could not be characterized as the husband's separate property because it is impermissible to engage in 'sham transactions' designed to avoid the payment of gift taxes. However, it was permissible for the trial court to decline the inclusion of the husband's economic in-kind benefits when calculating his child support obligation because the benefits in questions are not included in the husband's monthly gross income and do not provide the husband with benefits or services that the husband would otherwise have to provide, such as housing or automobile benefits.

Custody/Wiretapping

In a child custody proceeding, a parent who is in his or her own home may be able to consent to the interception of the child's communications with the other parent, if the parent has a good faith, objectively reasonable basis to believe that the interception is necessary and in the best interest of the child. Smith v. Smith, Number 2004 CU 2168, Court of Appeal of Louisiana, First Circuit, Sept. 28, 2005.

After their divorce, the parties shared joint custody of their child. The child resided primarily with the mother and had specific visitation with the father. Subsequently, the mother filed a petition seeking an increase in child support and a modification of the visitation schedule. The father cross-moved, seeking an award of custody and a recalculation of his child support obligation. During the earlier litigation, the mother discovered that the father had been intercepting and tape-recording conversations between her and their child without the mother's knowledge or consent while the child was visiting the father. Thereafter, a custody trial was held and the father was awarded custody after the trial. The tape recorded conversations were used as evidence during the custody trial and the mother appealed, arguing the conversations were acquired illegally. The appellate court affirmed. It held that under certain circumstances, a parent should be able to consent vicariously to tape recording telephone conversations on behalf of his or her minor child. It considered that there are cases where such vicarious consent is necessary for the child's best interests. The court held that in a child custody proceeding, a parent who is in his or her own home should be able to consent to the interception of the child's communications with the other parent, if the parent has a good faith, objectively reasonable basis to believe that the interception is necessary and in the best interest of the child.

Child Custody And Relocation

Nevada's relocation statute does not apply to parties who share joint physical custody of their minor children; a parent seeking to relocate must file a motion for change of custody and a hearing must be held on the best interests of the child. Potter v. Potter, No. 42488, Supreme Court of Nevada, Sept. 22, 2005.

The mother and father resided in Nevada and were married in 1994. There was one child of the marriage, born in 1995. Thereafter, the parties divorced and shared joint legal and physical custody of the child. They had no custody problems and both parents were involved with the child. In 2003, the mother was offered employment in California for a similar job with higher pay. The mother filed a petition under the state's relocation statute (NRS 125C.200 ) to relocate to California with the child of the parties for the employment opportunity and also to reside closer to a university that provided a nurse anesthesiologist degree, which was not available in Nevada and for which the California employer would pay a significant portion of the cost. The father opposed the motion, arguing that because the parties had joint physical custody, the mother could not apply to relocate unless she successfully moved for primary physical custody. The trial court rejected the father's argument, performed an analysis consistent with relocation factors, and ultimately granted the mother's relocation request. The father appealed, and the appellate court reversed. It held that Nevada's relocation statute did not apply to situations where the parties share joint physical custody. It further held that where one parent seeks to sever joint physical custody in order to relocate, the parent must first move for primary physical custody with the purpose of relocating and that the hearing court must consider the best interest of the child standard in determining whether modification of the joint physical custody arrangement is appropriate.

Separate Property; Child Support

Money for the parties' house provided by means of separate checks to the husband and wife from the husband's parents may not later be claimed as the husband's separate property; the husband's 'economic in-kind' employment benefits of life insurance, medical insurance and a retirement plan may not be included as part of the husband's gross income for the purpose of determining child support. Hayes v. Hayes, S05F0738, Supreme Court of Georgia, Oct. 11, 2005.

The parties were divorced after a trial. During the trial the husband argued that $40,000 provided by his parents to the parties was a gift solely to him and was his separate property. The gift was written as four separate checks of $10,000 each, two payable to the husband and two payable to the wife. The husband argued that two of the checks were made payable to the wife solely to avoid the federal gift tax. The husband also argued that child support based upon his gross income, should not include the 'economic in-kind' benefits provided by his employer of life insurance, medical insurance and a retirement plan. The trial court agreed that the $40,000 in gifts was the separate property of the husband and that the economic in-kind benefits provided by the husband's employer should not be included in the husband's gross income. The wife appealed, and the appellate court affirmed in part and reversed in part. It held that the $40,000 from the husband's parents could not be characterized as the husband's separate property because it is impermissible to engage in 'sham transactions' designed to avoid the payment of gift taxes. However, it was permissible for the trial court to decline the inclusion of the husband's economic in-kind benefits when calculating his child support obligation because the benefits in questions are not included in the husband's monthly gross income and do not provide the husband with benefits or services that the husband would otherwise have to provide, such as housing or automobile benefits.

Custody/Wiretapping

In a child custody proceeding, a parent who is in his or her own home may be able to consent to the interception of the child's communications with the other parent, if the parent has a good faith, objectively reasonable basis to believe that the interception is necessary and in the best interest of the child. Smith v. Smith , Number 2004 CU 2168, Court of Appeal of Louisiana, First Circuit, Sept. 28, 2005.

After their divorce, the parties shared joint custody of their child. The child resided primarily with the mother and had specific visitation with the father. Subsequently, the mother filed a petition seeking an increase in child support and a modification of the visitation schedule. The father cross-moved, seeking an award of custody and a recalculation of his child support obligation. During the earlier litigation, the mother discovered that the father had been intercepting and tape-recording conversations between her and their child without the mother's knowledge or consent while the child was visiting the father. Thereafter, a custody trial was held and the father was awarded custody after the trial. The tape recorded conversations were used as evidence during the custody trial and the mother appealed, arguing the conversations were acquired illegally. The appellate court affirmed. It held that under certain circumstances, a parent should be able to consent vicariously to tape recording telephone conversations on behalf of his or her minor child. It considered that there are cases where such vicarious consent is necessary for the child's best interests. The court held that in a child custody proceeding, a parent who is in his or her own home should be able to consent to the interception of the child's communications with the other parent, if the parent has a good faith, objectively reasonable basis to believe that the interception is necessary and in the best interest of the child.