Domestic Violence and Child Custody

Dear Jessica,

I am currently in a divorce and child custody battle over my son in Reno. My ex is trying to use a 10-year old domestic violence charge against me. He and his attorneys are also trying to use evidence from another Nevada child custody case concerning my oldest child. I had a drug addiction when I was in my 20s that resulted in me losing custody of my oldest child for a year. I was able to eventually get my rights back and have been clean and sober for the last 9 years. I just don’t understand how my other custody case from several years ago can be relevant. Also, I was under the impression that a domestic violence charge becomes sealed after 10 years. I just found out that the Judge is letting the evidence in. Should I get a new Judge? What should I do?

Thank you for your help.

Dear Susan,

Obviously, the family court in Nevada takes claims of domestic violence very seriously. In fact, whether a parent has committed domestic violence against the other parent or the child is a factor the court must consider in determining what custody arrangement is in the child’s best interest in a child custody case.

There is case law in Nevada that holds that a prior act of domestic violence can be used in a child custody case to show that the accused parent should not be awarded physical custody of the child. Just claiming domestic violence is not enough- the domestic violence must be proven by clear and convincing evidence. A conviction in a criminal court would be clear and convincing evidence.

The inquiry does not, however, end there. The accused parent can rebut the evidence with other facts showing that the prior act of domestic violence should not prevent that parent from having custody of the child. Any remedial efforts, such as therapeutic intervention or anger management would be relevant.

In this case, the length of time since the act would also be relevant. Further, if the child’s father in this case was not the victim of the domestic violence in the first place, knew about the prior bad act, and still chose to have children with you knowing your past, there is definitely an argument that he should not be able to use that against you now.

With respect to your prior child custody case, any evidence relevant then could be relevant now, but, again, if your ex knew about the circumstances of your other custody case and still chose to have children with you, it will be difficult for him to argue that he now, years later, finds you to be unfit.

With respect to getting a new Judge, that is unlikely. At the beginning of your case, you or your family law attorney, had the opportunity to file a peremptory challenge and pay a $450.00 fee to have your case randomly reassigned to another Judge.

After your Judge has entered orders in your family law case, you waive your right to file the peremptory challenge. The only other way to remove a Judge is to file a motion to disqualify the Judge based on a showing of bias. This is very difficult to do and must be based on a clear showing of bias.

It is also important to note that evidence that would not be admissible in a criminal context, may be admissible in the civil arena due to the fact that there are different burdens of proof and different due process concerns.

My advice is to make sure that you have a family law attorney of your own to help you navigate through this process and these issues. This is particularly true if your husband has a divorce lawyer of his own.

Jessica H. Anderson
Divorce Attorney Reno NV