Family Law New Rules: EDCR 5

Special Feature: CLE Article #14*

A significant overhaul of the rules governing procedures in family court went into effect on June 11, 2022.

I. Overview

Even before the Nevada Supreme Court ordered the various counties to amend their local rules to conform to the timing and other changes in the revised NRCPs in 2019, the 8th Judicial District Family Division had started the process of tweaking Section 5 of the Eighth Judicial District Court Rules enacted in 2016 to address observed conflicts, contradictions, and problems. The reconvened Committee consisted of Judges Denise Gentile, Charles Hoskin, and William Potter, plus attorneys Jennifer Abrams, Michael Carman, Vincent Mayo, and Marshal Willick.

The Nevada Supreme Court gave a very short timetable for all counties to amend their local rules to match the timing changes in the new NRCP. The EDCR 5 Committee dropped everything to conform the “timing” rules to the NRCP; work up to that time, plus the timing rules, became the “Phase One” changes, which were approved in November 2019. Committee work continued on all other suggestions, which became “Phase Two.”

In 26 multi-hour meetings, the EDCR 5 Committee looked at every comment, question, suggestion, and complaint about the operation of the family court local rules submitted, whether by a member of the bar, an agency, a member of the public, or anyone else.

As with the 2016 revisions, all proposed revisions were posted to the Nevada State Bar Family Law Section listserv as they were completed for commentary and response. Updates were provided at the Clark County Family Court Bench/Bar meetings. Materials were also posted on a publicly-available website’s Clark County Bench/Bar page (http://willicklawgroup.com/clark-county-bench-bar-committee/) for review and commentary; all e-mailed comments were brought back to the Committee for discussion.

Fairly late in the process, when it was noted that some timing and other rules in EDCR Section 1 had been missed by the “downtown committee” during Phase One, the EDCR 5 Committee was asked to go over that section as well, and did so.

The Phase Two rule set and redline of both the reorganization and the modifications (of both Section 5 and Section 1) were produced and submitted to the family law listserv, and then to the family courtjudges, in January 2021. They were approved with minor modifications by the Family Court, then the entire Eighth Judicial District Court, and finally by the Nevada Supreme Court as ADKT 590 on April 11, 2022.

II. Goals for the rule revision

A good deal of priority was assigned to simplifying and clarifying the rules, the goal being to make compliance with the rules as simple as possible for both attorneys and pro se litigants.

To that end, all cross-references to other specific rules were eliminated, and all other sections of the EDCR were reviewed, with pieces of the other Sections of the local rules incorporated so that Section 5 could be a stand-alone rule set for all procedure in family court, to eliminate contradictions and cross-references (5.101). Much of the language imported from other rule sets was modernized, simplified, and clarified.

For the same reason, the rule set was re-organized, so that the rules were in logical groups: court organization; general procedure; attorneys, parties, children and parents; motions; stipulations, conferences, and hearings; and orders and judgments. In light of the comprehensive state-wide rule set that has been adopted for guardianships, all rules on that subject were removed.

III. Specific notable changes

Correcting an accidental deletion from the 2016 revisions, the Committee restored the ability to demand closed hearings of motions as well as trials, in all case types, and that the video record of a closed hearing or in a sealed case is confidential, not open to public inspection, and may not be disseminated to any third party beyond parties, their counsel and staff, and any experts involved. This was somewhat altered in the Phase One adoption (the Nevada Supreme Court apparently did not realize that the rule had already been in effect for many years and had only accidentally been eliminated in 2016), but the language was restored in Phase Two to ensure equal protection of people whether they are married or not (5.212).

Treating similarly-situated people equally was given a high priority in consideration of every rule. The judge-created category of “Complaints for Custody” were construed as paternity/parentage actions so that unmarried parents had the same procedural rights as married parents (5.207).

Several rules were adopted to resolve questions that have plagued trial and appellate courts. Unless a court specifically orders otherwise, the marital community terminates at the close of evidence at trial and behavioral orders continue after a final order, but other temporary orders terminate automatically when permanent orders are made, while any arrearages remain collectible (5.712).

Changing an oddity from section 7, courts may enter notices of entry, and if a party waives notice of entry, the date of doing so is treated as the date of notice for reconsideration and appellate purposes (5.704).

The relationship between items filed as exhibits and produced in discovery was clarified so that only items produced in discovery were admissible at trial (5.506). A list of standardized notices was adopted (5.707).

Orders entered by visiting and senior judges may explicitly be modified by the regularly-sitting judge when that judge returns (5.204). When and how ex parte contact with a department can be made was clarified (5.211).

A series of rules intended to make family practice more civil were adopted, including rules of civility (5.218), and requirements to inform opponents of known hearing dates and to serve actually known addresses even if that is not the address on file with the court (5.205, 5.511).

The parenting “Cope” seminar was flipped from opt-out to opt-in, so it is not required unless specifically ordered (5.305). All required “conferences” were expanded to permit video and email discussions (5.402, 5.510). How to get in and out of unbundled cases was clarified (5.303). A mechanism was devised to continue having actual ex parte orders in the modern world of instant electronic notice of filings (5.711).

Having noted the enormous savings in time and money for litigants and counsel alike, the default was altered so that motion practice would continue to default to “virtual” even after the pandemic restrictions are lifted, with a provision to have an in-person hearing if desired (5.609), with procedures implemented to make public access to non-sealed, non-closed hearings virtually as if it was in person. The provisions for decisions on the papers on “Chambers Calendar” were streamlined and clarified (5.502).

Step-by-step procedures for actually getting an NRCP 70 order in place were adopted (5.216). Binding stipulations may not only be recited “on the record” as under prior EDCR 7.50, but recorded in video, etc. (5.601). Faster disposition of uncontested matters, and elimination of boilerplate findings were provided (5.701), and the timing rules to allow countersignatures were streamlined (5.706).

IV. Conclusion

In addition to the rules discussed above, lots of other minor phrasing and technical changes were made, intended to make family practice as efficient, economical, logical, and fair as possible.

The time commitment on this rule redraft and revision was enormous, and if not for the dedicated work of each member of the Committee could not have been completed in the time it was with the level of scrutiny and consideration necessary for the task.

About the author

Marshal S. Willick, Esq. is the Principal of the WILLICK LAW GROUP, an A/V-rated Las Vegas family law firm, and QDROMasters, its pension order drafting division. He can be reached at 3591 East Bonanza Rd., Ste. 200, Las Vegas, NV 89110-2198. Phone: (702) 438-4100.