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Uniform Child Custody Jurisdiction Act and PKPA
Learn more about Uniform Child Custody Jurisdiction Act and PKPA.
The UCCJA sets out four grounds for finding original jurisdiction The Parenting Kidnaping Prevention Act addresses the continuing interstate custody jurisdiction problemsThe practitioner must find out whether a military member is or has been a participant in the Thrift Savings Plan, and if so whether any funds have been withdrawn or borrowed from the plan. There is no legal authority to order a pet into the custody of one person or another, and no status quo when it comes to visitation in Nevada. It has become increasingly difficult to explain to clients that they must choose between "Fluffy" or the equity in their home. Some have even traded family pets for heirloom jewelry, retirement funds, or expensive vehicles. i) First, the variable multiplier is determined by multiplying a standard per diem of .0109589 [2/182.5] by the ARP's parenting time determined pursuant to paragraph (7)(b) above. For example, the 94 days of parenting time calculated in the example from paragraph (7)(b)4(i) is multiplied by .0109589, resulting in a variable multiplier of 1.0301366 [94 x .0109589]. Finally, the Alaska formulation contains a "look-back" provision under which courts are to eliminate the joint-custody offset if it was set up based on a custodial schedule that was not in fact followed by the minority-time-share parent, restoring full guideline support. The attorney for a spouse seeking a portion of a TSP account should specify that the award is to be paid along with interest and earnings on that award. If such language is in the order, the spouse will receive the same accumulations attributable to the spousal share that the participant receives as to the account; if such language is not included in the order, the spouse will receive no accumulations, interest, or earnings on the defined share through the date of distribution. A court order may also specify an interest rate to be applied to a distribution from a given date. The district court denied a motion for a reduction in child support. The Supreme Court affirmed, holding that an affidavit, by itself, in support ofa request ofa reduction of child support was insufficient, citing to Green v. Green, 75 Nev. 317, 340 P.2d 586 (1959) (held that spouse's affidavit which alleged that she had insufficient funds was legally insufficient.) The Supreme Court reversed. The Court held that a change of custody is warranted only when the circumstances of the parents have been materially altered and the child’s welfare would be substantially enhanced by the change citing to Ferguson v. Krepper, 83 Nev. 408, 432 P.2d 668 (1967); Lyerla v. Ramsay, 82 Nev. 250, 415 P.2d 623 (1966); Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961), and Osmun v. Osmun, 73 Nev. 112, 310P.2d 407 (1957). At the very minimum, the presumptive maximum should be reset to its inflation-adjusted equivalency from when the child support statute was first passed. As of March, 2007, the equivalent of $500 in 1987 dollars was $905. If the 1987 statute was to be given any credence, that would be the first "presumptive maximum" looked at. That is not any kind of "jump" - it is only undoing the decrease that was imposed in 2001. And the law is even more inclined to err in favor of the member in disputes relating to visitation and the substitution of third parties for the member’s usual time. In Illinois, since World War II, the courts have decided that the SSCRA permitted granting fit relatives (at least grandparents) to exercise the child visitation previously enjoyed by a deployed military member.8 Other States have similar case law.9 An attorney should not charge a fee the payment or amount of which is contingent upon: (i) obtaining a divorce; (ii) custody or visitation provisions; or (iii) the amount of alimony or child support awarded. An attorney may charge a contingent fee for all other matters, provided that: These are pretty much "one-way" problems, insofar as there seems to be little authority regarding U.S.-based servicemembers attempting to litigate against foreign spouses or former spouses overseas. Rather, the typical problem involves situations where both the member and the spouse are located overseas, or the spouse is States-side, and the member is located at a U.S. installation in some foreign country. SUP> One would be wrong. Apparently, the child support "enforcement" agencies of Nevada have not initiated a criminal non-support case for over seven years. In short, they don’t care. New York X The practitioner must find out whether a military member is or has been a participant in the Thrift Savings Plan, and if so whether any funds have been withdrawn or borrowed from the plan. On June 26, 1981, the United States Supreme Court focused the debate by issuing its opinion in McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728 (1981). The husband in a California divorce had requested that his military retirement benefits be "confirmed" as his separate property. In 1977, the California trial court had found that the military retirement benefits were quasi-community property, 3 and therefore ordered the normal "time rule"4 division of the retirement benefits. The Keen decision noted that the rule it adopted was by far the majority rule, in both federal and State courts, and that only one federal circuit (the Sixth) seemed to have a contrary view. Further, the court noted that many such decisions were issued after Egelhoff, and that Hopkins does not lead to any contrary result, citing Altobelli and Fox Valley.4 The cases keep coming, and the bulk of recent authority states that waiver of spousal beneficiary status is permitted through the divorce court instruments.5 Regardless of the reasons, the result was fundamentally unfair because it deprived Petitioner of her entitlement to one-half of a substantial community asset with her receiving $677.50 per month less than the amount awarded her by the court. It was therefore appropriate for the trial court, in ruling on the motion by Petitioner for modification or clarification, to devise a formula which would again equitably divide the community assets without requiring the monthly amount payable to Petitioner to be paid direct from the Respondent’s military retirement. On appeal, the husband sought to have court find the parties remained married so that wife’s property transferred to him. The Court held that the district court could modify property or alimony terms without vacating the divorce itself, under the concept of divisible divorce, without violating NRS 125.130. The majority opinion reversed the property provisions of the default decree but left the divorce itself in place. The Court held this result was compatible with Gojack v. Second Judicial Dist. Court, 95 Nev. 443, 596 P.2d 237 (1979). The Court appeared to base much of its result in equity by stating: "... Wayne now desires to posthumously confer the status of a deceased wife upon Kathleen in order to retain her share of the community property. To permit him to do so would engage the judicial process in an affront to equity. This we refuse to do." Id. at 976-77. The Court also noted that "equity considers as done that which ought to be done." Id. at 978. There was a partial dissent by Justices Young and Rose, who would have held that setting aside a default decree of divorce would have left the parties married, along with providing a variety of quotable dicta on the ppressiveness of attorney’s fees. The parties were divorced in Nevada. The husband was ordered to pay $30 per month per child. The wife moved to California. The husband filed in California seeking to change custody. California refused and increased child support to $60 per month per child. The husband stopped paying. The wife initiated a URESA action in California. The action was forwarded to Nevada. The husband and the district attorney stipulated to a judgment requiring the husband to pay $30 per month. Six years later, the wife obtained a judgment in California against the husband at $60 per month. The district court held that the URESA order obtained in Nevada did not supersede any previous order of support and that the wife did not waive any rights by initiating the action. The Court applied the six year statute of limitations. The Court held that payments made pursuant to a URESA order in Nevada are to be credited against amounts accrued for the same period under the support order of another state. nbsp;The Supreme Court’s adoption of the Missouri definition of "joint physical custody" is appropriate, as it gives a trial court discretion to assess the facts unique to each individual case from a child-centered point of view. The definition focuses the inquiry on the significance of the child’s relationship with each parent - where the child actually resides (does the child have one or two principal households) and on whether one parent or both meaningfully takes care of and supervises the child. 65279;The Supreme Court affirmed. The Court noted in determining whether alimony should be paid, as well as the amount that the lower courts are vested with a wide range of discretion and much depends upon the particular facts of the individual case. The Court laid out a series of factors that are to be considered; the financial condition of the parties; the nature and value of their respective property; the contribution of each to any property held by them as tenants by the entirety; the duration of the marriage; the husband's income, his earning capacity, his age, health and ability to labor; and the wife's age, health, station and ability to earn a living. The Court noted that the wife beginning in August 1972, some 16 months after she instituted the divorce action, the wife worked as a model one day a week earning $20 per day, with sporadic other modeling work; that except for dental work, which was not shown to be continually required, there was no evidence showing that she was in ill health or in any way infirm; that there was neither effort nor desire on her part to seek steady or full-time employment; that she required a live-in housekeeper at $200 per month because "she was accustomed to having one," that there is no showing that she could not adjust to other employment, or become more gainfully preoccupied with modeling. Here, the district court did not explain in its order the basis for awarding Mr. Rivero attorney fees and only noted in its summary order that Ms. Rivero's motion to disqualify the district court judge was without merit. Although Ms. Rivero did not prevail on the motion, and it may have been without merit, that alone is insufficient for a determination that the motion was frivolous, warranting sanctions. Nothing in the record indicates that the district court attempted to determine if there was any credible evidence or a reasonable basis for Ms. Rivero's motion to disqualify. Because the chief judge did not hold a hearing or make findings of fact, no evidence demonstrates that Ms. Rivero's motion was unreasonable or brought to harass. Therefore, we conclude that the district court abused its discretion in sanctioning Ms. Rivero with attorney fees for her motion to disqualify. Thus, we reverse and remand the district court's order granting an award of attorney fees to Mr. Rivero to the district court for further proceedings consistent with this opinion. The Supreme Court construed the 1993 revision of NRS 125.150 in this opinion, which required an equal division of community property unless compelling reasons to the contrary existed. The husband had transferred $100,000 to his father; while he got most of it back, some $39,800 remained unaccounted-for, which the district court found was either wasted or secreted. The husband also "transferred $17,000 for his personal use," used $11,200 to improve and $10,000 to furnish his [apparently separate property] house, transferred another $13,000 to his father, paid $5,000 to his children. Adding these sums to the missing $39,800 totaled some $96,000. The district court’s "augmented" the wife’s share by half that sum, or $48,000. The statute is more limiting regarding division of retired pay as property, however. The former spouse can apply for direct payment from the military to the former spouse,2 but the USFSPA limits direct payment to a former spouse to 50% of disposable retired pay for all payments of property division.3 More than fifty percent of disposable pay may be paid4 if there is a garnishment for arrears in child or spousal support, or in payments of money as property other than for a division of retired pay. In other words (and counter-intuitively), about the only part of arrearages arising from a divorce judgment that cannot be satisfied by garnishment from retired pay is arrearages in retired pay. bsp; (b) whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat the visitation rights of the non-custodial parent; Fifth and finally, we conclude that the district court abused its discretion by awarding Mr. Rivero attorney fees as a sanction for Ms. Rivero's disqualification motion because the district court made no determination whether the motion was frivolous, and no evidence supports the sanction. SUP> While the evolution of women¡¯s rights in Western societies generally is beyond the scope of this paper, the snippets above suffice to convey the subordinate role for women perceived and institutionalized by the legal framework in place in the middle of the 19th century. A divorce decree calling for future reduction or termination of alimony may seem harsh to the obligee, whose needs presumably will not decrease. But property division schemes everywhere increasingly resemble the community property scheme of dividing, usually equally, that which was created, during the marriage, and most states (including Nevada) have eliminated "fault" analyses in favor of straight economic criteria for if and how much '" alimony should be awarded. Obviously, if the employee manages to reduce or eliminate the value of the TSP prior to a court-ordered division, that fact should be discovered and taken into account. SUP> What happens to CEJ when parties move out and back depends on whether and when an action is filed, and who it is that is doing the moving. If all parties leave, but the custodial parent and child There is a question whether the "broad discretion" accorded to trial courts in making property distributions under the pre-1993 law has been changed in any meaningful way by the change from "equitable" to "presumptively equal" division. The matter could probably be argued either way. There is plenty of authority for the proposition that the legislative change reduced the scope of judicial discretion to make unequal distributions, since legislative enactments are to be construed so that "no part of a statute should be rendered nugatory, nor any language turned to mere surplusage, if such consequences can properly be avoided."6 On the other hand, the new statutory construction still appears to be leave plenty of wiggle room. Calculations, and projections, are necessary when the "cash out" approach is to be used. Because the value of a participant’s interest in a defined benefit plan depends upon numerous factors, it is difficult to measure until after retirement. If the employee spouse is still working, assumptions must be made as to how many more years will be worked, whether (and how much) salary will increase, whether the employee might be fired or die before retirement, how long the employee will live after retirement, etc. Expert assistance is almost always required for these plans, since life tables, discount rates, actuarial accounting, etc., are required in arriving at a valuation. There are several approaches to such valuations. The husband filed for divorce in Nevada while the wife was a domiciliary of Georgia. The wife contended that the district court could not grant divorce. The district court granted the divorce. The Supreme Court held, a divorce was an in rem proceeding in which the district court had jurisdiction to change the marital status of the parties even though only one party to the marriage was a bona fide resident. However, before adjudicating the incidences of the parties’ marriage, the district court is required to obtain in personam jurisdiction over both parties, which left the district court unable to adjudicate the wife’s rights to custody, support, and alimony. B> Property specifically excepted from the definition of community property is "separate property," which is defined in NRS 123.130 as "[a]ll property of the wife owned by her before marriage, and that acquired by her afterwards by gift, devise, descent or by an award for personal injury damages, with the rents, issues and profits thereof" and "[a]ll property of the husband owned by him before marriage, and that acquired by him afterwards by gift, bequest, devise, descent or by an award for personal injury damages, with the rents, issues and profits thereof . . . ."1 The parents divorced in 1989. They had joint legal and physical custody of their child. The paternal grandparents requested visitation. The parents opposed the request. A domestic relations referee recommended the maternal grandparents have unsupervised visitation so long as a counselor so recommended and if they completed a parenting class. The principal basis of the referee was a finding that the father and the child had resided in the home of the paternal grandparents after the divorce and the paternal grandparents assumed "significant responsibility in raising that minor." There was apparently conflicting evidence on that point; also, a child custody specialist submitted a report recommending against visitation. Both parents objected to the referee’s report and after a hearing the district court judge adopted the referee’s report. The mother appealed. The instinct to protect appearances at the cost of actual damage to real people is unfortunate, and sets the courts up to repetition of the Whitehead fiasco. Ironically, it also contradicts the public policy goal that Millen states is the purpose of the judicial canons - "to promote public confidence in the judiciary." Tolerating decision-makers sitting in cases where bias has been established, and lawyers telling their clients that the deck is stacked against them before they ever appear in the courtroom, is the most efficient mechanism one can imagine for eroding public confidence in the judiciary. You can find Uniform Child Custody Jurisdiction Act and PKPA The Marren and Page Case List Murphy v Murphy Harris v Harris Peavey v Peav Child Custody Initial Jurisdiction The Marren and Page Case List Jensen v Jensen and Sertic v Sertic Constitutional Concerns Rivero State Bar Amicus Brief Part One Subsection II Las Vegas FERS expert lawyer Medical and Other Ancillary Military Benefits to Consider Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Introduction to Nevada Divorce Law Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar Divorcing the Military and Serving the Civil Service Section II Subsection Public Employees Retirement System PERS Benefits Section I Subsection B The Marren and Page Case List Emerich v Emerich Hitting the Jackpot in Pension Cases Secrets to Getting the Retirement Shar What to Argue If Seeking to Prevent a Court with Jurisdiction from Exercisi The Marren and Page Case List Reel v Harrison Uniform Child Custody Jurisdiction Act and PKPA The Marren and Page Case List Applebaum v Applebaum Uniform Child Custody Jurisdiction Act and PKPA available at lvfamilylawyer.com by clicking above. 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