Understanding Rule 5 of the Eighth Judicial District Court

Website design By BotEap.comPart V of the Rules of Court for the Eighth Judicial District governs practice and procedure in family matters. This was written to help improve understanding of the rule. For a fuller explanation of the rule, I direct you to the rule itself, which is neither particularly difficult nor overly comprehensive. Here, I will only discuss those aspects of the rule that I feel are relevant to my particular practice.

Website design By BotEap.comEDCR 5.02 states that any hearing may be closed at the request of either party. This will result in the hearing being closed to all others except the parties, attorneys, and testifying witnesses. The court may allow an expert witness to remain present at the proceeding if it determines that doing so would further justice or the best interests of the child.

Website design By BotEap.comEDCR 5.03 prohibits discussing issues of any case with children of the case or allowing such children to observe any record or pleading in the case.

Website design By BotEap.comEDCR 5.07 requires parties in all domestic relations matters involving a child 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 submitted. Proper procedure dictates that litigants in custody cases must take the co-parenting class immediately after hiring an attorney to meet the 45-day requirement.

Website design By BotEap.comEDCR 5.13 governs child interviews and subcontracting evaluation reports. Please be aware as an attorney that this rule prohibits the release of any subcontracted child interview or custody report to anyone other than a licensed attorney. Clients may review these reports while in the custody of the attorney or the courts, but such reports should not be served on the parties without an attorney. The rule further provides that these written reports should not become evidence or part of the open court file without a court order. Finally, please note that the content of these written reports may be received as direct evidence of the facts contained in these reports.

Website design By BotEap.comEDCR 5.11 requires the parties to attempt to resolve the issues before any motion is heard. Failure to attempt resolution before the hearing may result in penalties. An award of attorneys’ 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 such resolution. Part (b) of this rule provides that in the event that the non-moving party fails to file an opposition or response in a timely matter to a motion or countermotion. The rule allows the mover in such a case to file a Request for Presentation along with a proposed order. The request must state the date and time of the hearing currently set and request that the hearing be set aside. At the judge’s discretion, such an order may be signed unless the court lacks jurisdiction or determines that the interests of justice dictate otherwise.

Website design By BotEap.comEDCR 5.12 states that a child may not be examined for the purpose of obtaining an expert report for a trial or hearing in the absence of a stipulation of the parties or a court order.

Website design By BotEap.comEDCR 5.20 governs preliminary injunctions and temporary restraining order. Motions for temporary restraining orders or preliminary injunctive relief must be supported by an affidavit setting forth sufficient detail to justify the requested relief. Such requests for restraining orders granting relief regarding property, custody, visitation, and support will be considered in cases of extreme emergency. The attorney for the parties must make a written certification of such attorney’s efforts to notify the other party and provide the reason why notice is not necessary in an ex parte context. Any ex parte restraining order will expire on its own terms not to exceed 30 days, unless good cause is shown to extend it. In these ex parte cases, a hearing will be convened as soon as possible.

Website design By BotEap.comWith ten days’ notice to the party that obtained the restraining order, the opposing party may appear and request its dissolution or modification. These temporary restraining orders cannot be granted unless they are accompanied by an order setting the time to hear the motion for the order or injunctive relief.

Website design By BotEap.comEDCR 5.21 allows temporary restraining orders regarding residence. A motion may be filed to request such exclusive possession. Please note that any such motion must be accompanied by an affidavit establishing sufficient facts to grant such request. Ex parte motions will be considered if the other party does not live in the residence. If both parties reside there, an ex parte motion for sole possession will be considered only in extreme circumstances.

Website design By BotEap.comEDCR 5.22 governs temporary protection orders. The standard required for such orders to be issued is “to the satisfaction of the court.” The request and order for the extension of a TPO must be served no later than 24 hours before the date of the TPO extension hearing. Said request and order to extend a TPO must be accompanied by an affidavit that establishes the specific facts that justify it. Please note that within such an application you can request child or spousal support. If you do, a Financial Disclosure Form is required to be submitted with your application. An extended protection order cannot be renewed without new facts being established that would be sufficient for such an extension.

Website design By BotEap.comDomestic violence commissioners oversee these absentee TPO hearings and open a domestic case. These commissioners can make decisions that are subject to the approval of the assigned district court judge, who is ultimately responsible for the case. These orders will remain in effect until their term expires or until a motion is filed and heard by a district court judge or orders otherwise on the subject.

Website design By BotEap.comNote that a party may object to a domestic violence commissioner’s recommendation by filing an objection within 10 days of 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 quashing all or part of the commissioner’s order.

Website design By BotEap.comEDCR 5.32 dictates when a financial disclosure form must accompany a motion. Essentially, any motion for fees and allowances, temporary spousal support, child support, or sole possession of the community residence must be accompanied by such a financial disclosure form. An incomplete form or the absence of such a form may be interpreted as an admission that the motion is without merit and cause for denial. Any party opposing such a motion has the same duty to provide such a disclosure form to the court.

Website design By BotEap.comEDCR 5.33 requires that we file an arrears schedule each time we file a motion alleging that a party is behind in paying child support, spousal support, or any other periodic payment. The schedule should show what was owed and what was paid on the due date.

Website design By BotEap.comEDCR 5.39 states that the attorney must file a UCCJEA statement any time custody of a child is in question and the child has resided outside of the state of Nevada within the last five years. The statement must state the names and addresses of everyone the child lived with during that time period. This statement must be filed before the court hears the contested child custody action.

Website design By BotEap.comEDCR 5.70 states that all parties filing an answer for internal custody or visitation disputes must attend mediation prior to the hearing or trial. For good cause shown, the district court judge may waive this requirement. The parties are free to mediate through private mediators by also submitting a “private mediator form”. When filing an Answer, the Complainant has a duty to file a Stipulation and Order for Mediation or an FMC Request and Order for Mediation. The court may ex officio order the same at any time. Mediation fees through the Family Mediation Center are set on a sliding scale of $50 to $200 based on the income of the parties. Parties receiving public assistance may receive a fee waiver for these services. The attorney may speak with the mediator before the mediation conference, but will be excluded from the actual mediation.

Website design By BotEap.comEDCR 5.81 requires that in all disputed matters involving children, such custody/visitation matters be heard by the judge before any judgment is heard. Therefore, it is up to the parties to file a motion for custody and have that motion heard before a trial date is set.

Website design By BotEap.comEDCR 5.87 states that the attorney must meet prior to the schedule call for a pretrial conference. The parties are required to meet and confer prior to the schedule call in order to exchange their witnesses and evidence. The complainant must designate the place for this conference. The parties may stipulate and make agreements prior to this conference to expedite trial. In particular, the parties must stipulate the admission of any evidence at trial. The pre-trial memorandum can and should be filed at least ten days before the calendar call. The requirements for the pretrial memorandum are set forth in section (b) of rule 5.87.