Understanding Eight Judicial District Court Rule 5
- Author Eric Roy
- Published December 13, 2014
- Word count 1,508
Part V of the Eighth Judicial District Court Rules governs practice and procedure in family matters. This was written to enhance the understanding of the rule. For a more comprehensive explanation of the rule I direct you to the rule itself which is not particularly difficult or overly comprehensive. Here, I will only discuss those aspects of the rule which I find pertinent to my particular practice.
EDCR 5.02 provides that any hearings may be private upon the demand of either party. This will result in the hearing being closed to all others other than the parties, counsel, and any testifying witnesses. The court may permit an expert witness to remain present in the proceedings if the court finds that to do so would promote justice or the best interests of the child.
EDCR 5.03 prohibits discussing issues of any case with children of the case or otherwise allowing such children to observe any record or pleading in the case.
EDCR 5.07 requires parties in all domestic relations matters where a child is at issue to attend a co-parenting seminar within 45 days of service of the initial complaint. This rule is often ignored until a judge reviews the record and sees that no COPE certificate has been filed. Proper procedure dictates that litigants in custody cases should be directed to take such co-parenting class immediately after retaining counsel so as to effectuate the 45 day requirement.
EDCR 5.13 governs child interview and outsource evaluation reports. Be mindful as counsel that this rule prohibits dissemination of any child interview or outsourced custody report to anyone other than a licensed attorney. Clients are allowed to review these reports while in the attorney or courts custody but such reports are not to be released to parties without counsel. The rule further provides that these written reports are not to be made an exhibit or part of the open court file without order of the court. Lastly, keep in mind that the contents of these written reports may be received as direct evidence of the facts contained within these reports.
EDCR 5.11 requires that the parties attempt resolution of matters before any motions are heard. Failure to attempt resolution prior to hearing may result in sanctions. An award of attorney's fees and costs may be awarded if the court finds that such issues would have been resolved prior to court intervention if only the moving party had attempted this resolution. Part (b) of this rule provides that for the case in which the non-movant does not file an opposition or response in a timely matter to a motion or countermotion. The rule allows the movant in such case to file a Request for Submission along with a proposed order. The request should state the date and time for hearing currently set and request that such hearing be vacated. In the judge's discretion such order may be signed unless the court lacks jurisdiction or determines that the interests of justice dictate otherwise.
EDCR 5.12 states that a child may not be examined for the purpose of obtaining an expert report for trial or hearing absent a stipulation of the parties or order of the court.
EDCR 5.20 governs preliminary injunctions and temporary restraining order. Motions for temporary restraining orders or preliminary injunctions must be supported by an affidavit setting fort sufficient details so as to justify such requested relief. Such requests for restraining orders granting relief regarding property, custody, visitation, and support will be considered in cases of extreme emergency. The parties attorney need make certification in writing of such attorney's efforts to notice the other party and provide reason why notice need not be required in ex parte context. Any ex parte restraining order shall expire by its own terms not to exceed 30 days unless for good cause shown it is extended. In these ex parte cases a hearing shall be set on motion for the earliest possible time.
On ten days' notice to the party who obtained the restraining order the adverse party may appear and move for its dissolution or modification. These temporary restraining orders may not be granted unless coupled with an order providing for the time for hearing the motion for the order or injunction.
EDCR 5.21 allows for temporary restraining orders regarding residence. A motion can be put on requesting such exclusive possession. Be advised that such motion must be accompanied by an affidavit setting forth facts sufficient for granting such request. Ex parte motions will be considered if the other party is not living in the residence. If both parties are residing therein then an ex parte motion for exclusive possession will be considered only in extreme circumstances.
EDCR 5.22 governs Temporary protection orders. The standard required for such orders to issue is "to the satisfaction of the court". The application and order for the extension of a TPO must be served no later than 24 hours prior to the TPO extension hearing date. Such application and order for extension of a TPO must accompany an affidavit setting forth specific facts warranting such. Be advised that within such application you may request child or spousal support. If you do so then it is required that a financial disclosure form be filed along with such application. An extended protection order cannot be renewed without a showing of new facts which would suffice for such extension.
Domestic violence commissioners oversee these TPO hearings absent and open domestic case. These commissioners can make rulings which are subject to approval by the assigned district court judge who is ultimately responsible for the case. These orders will remain in effect until they expire by their term or unti8l a motion is filed and heard by a district court judge or orders otherwise on the issue.
Be mindful that a party may object to a domestic violence commissioner's recommendation by filing an objection within 10 days after the decision. The decision will remain in effect until the objection is heard. The assigned district court judge will be responsible for reviewing the matter and affirming or setting aside all or some part of the commissioner's order.
EDCR 5.32 dictates when a financial disclosure form shall accompany a motion. Essentially any motion for fees and allowances, temporary spousal support, child support, or exclusive possession of the community residence must be accompanied by such financial disclosure form. An incomplete or absence of such form may be construed as an admission that the motion is not meritorious and cause for its denial. Any party opposing such motion has an equal duty to provide such disclosure form to the court.
EDCR 5.33 requires us to file a schedule of arrears any time we file a motion alleging that a party is in arrears for child support, spousal support, or any other periodic payment. The schedule should show what was due and what was paid on the due date.
EDCR 5.39 provides that counsel should file a UCCJEA declaration any time the custody of a child is at issue and the child has resided outside of the state of Nevada within the past five years. The declaration should set forth the names and addresses of all people that the child lived with during that period of time. This declaration should be filed before the contested child custody action is heard by the court.
EDCR 5.70 provides that all parties filing an answer for domestic contested custody or visitation disputes must attend mediation prior to hearing or trial. For good cause shown the district court judge may waive this requirement. Parties are free to mediate through private mediators by submitting a "private mediator form" as well. Upon the filing of an answer the plaintiff has a duty to file a stipulation and order for mediation or an FMC request and order for mediation. The court may on its own initiative order the same at any time. Mediation fees through the family mediation center are set on a sliding scale from $50 to $200 depending on the income of the parties. Parties who receive public assistance may receive a fee waiver for these services. Counsel can speak to the mediator prior to the mediation conference but will be excluded from actual mediation
EDCR 5.81 requires that in all contested matters regarding children that such custody/visitation matters be heard by the judge prior to any trial be heard. Thus it is incumbent on the parties to file a custody motion and have such motion heard prior to the setting of any trial date.
EDCR 5.87 provides that counsel is to meet prior to calendar call for a pre-trial conference. The parties have an obligation to meet and confer prior to calendar call for the purpose of exchanging their witnesses and exhibits. The plaintiff should designate the location for this conference. The parties can stipulate and make agreements ant this conference so as to streamline the trial. Particularly, the parties should stipulate to the admittance of any evidence at trial. The pre-trial memo can and should be submitted at least ten days prior to calendar call. The requirements for the pre-trial memo are laid out in section (b) of rule 5.87.
Person Injury and Family Law
The Law Office of Eric Roy
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