John E. Cereso Nevada Law Group

Child Custody

John E. Cereso

John E. Cereso, Esq. and the Nevada Law Group have substantial experience in the field of custody law. One of the frequent questions we get from fathers in Henderson and Las Vegas is what rights of custody do fathers have. Especially among unmarried fathers, the conception is that they have very little rights in the matter of who decides the amount of access they have to their children. 

The fact is that both parents have legal rights to their children regardless if they are married to each other or not. Starting from the time of the birth of the child, parents share equal parental rights. 

John E. Cereso comments, "Sometimes men run into problems establishing paternity, and that may make it difficult to assert the father's rights. A simple paternity test is usually the best way to establish parentage of the child and the associated rights that stem from it."

Nevada Law:

NRS 126.031 makes clear that the relationship that exists between father and his child, regardless of whether the parents were married at the time of the child’s birth:

1.  The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of

Father Have No Custody Rights?

the parents.

2.  Except as otherwise provided in a court order for the custody of a child:

(a) Except as otherwise provided in paragraph (b), the mother of a child born out of wedlock has primary physical custody of the child if:

(1) The mother has not married the father of the child; and

(2) A judgment or order of a court, or a judgment or order entered pursuant to an expedited process, determining the paternity of the child has not been entered.

As the first paragraph unequivocally establishes, marriage does not factor into the rights of the father. However, in Section 2 (b) the law establishes that it is the mother who has "primary" custody of the child in the case of unmarried parents. The use of the word "primary" does not establish that the mother has sole custody but rather, she is the default custodian until decided by a court. Fathers are entitled to equal custodial rights to their children, but if unwed, must get an order from the Court in order to exercise those rights under this statute only if the father is not listed on the birth certificate.  If the birth certificate has been issued, then dad gets equal custodial and legal rights.

As far as establishing the paternity of the father, document NRS 126.053 is routinely issued to both the parents at the time of the birth of the child. If this document is not challenged within 60 days of signing, the paternity of the father is considered established. When this happens, subsection 2 of NRS 126.031 is negated by its own terms. Thus the parents have the same legal rights married or not. 

The mis conception that fathers have no custody rights to their children, if unwed, stems from the fact that law enforcement often defaults in favor of the mother. NRS 126.031 establishes that both parents have rights but does not answer the question of who has custody, it falls to the father to immediately file a complaint and motion to establish custody in the district court.  

John E. Cereso and Nevada Law Group recommend If you are a father in Nevada and you are attempting to assert your custody rights or establish the paternity of your child, it is very important for you to seek legal counsel. We at Nevada Law Group are here to help. If you have questions for John E. Cereso please email him at johnecereso@gmail.com.

"Stand Your Ground" Laws, A Brief History

The George Zimmerman trial may be over, but clearly the debate over race and law
enforcement rages on. At the center of the debate is Florida's "stand your ground law."
Here at Nevada Law Group, John E. Cereso, Esq. and his team have seen many cases
where race was at play but, unlike Florida, Nevada does not have such laws as "stand
your ground."

To understand the law it's helpful to take a look at its origin. Looking forward it stands to
reason that this is not the last time we are going to be discussing the controversial law.
Stand your ground laws are based on an old common-law doctrine. The old “castle
doctrine” held that someone attacked in his or her own home had no “duty to retreat”
before using deadly force to repel an attack. The main idea behind the law was to
protect home owners, who in the event of attack, had literally no where to run. It was
intended to shield innocent people forced to use deadly force from later being charged
with a crime.  There are some limitations on this, for example, you may only use the
force required and not excessive force depending on the situation.

The common law recognizes two kinds of self-defense. Justifiable homicide and
chance-medley. The first protected a defendant who was attacked. The doctrine
evolved from questions about the legal guilt of an executioner. After all, the hangman
or the axman intentionally takes a life. But he was “justified,” medieval courts held,
because the king ordered him to do it. The second “chance-medley” provision was
meant to protect a person in the event that a quarrel got out of hand and escalated to
the point where they had to use deadly force. A sort of kill or be killed scenario. When
the laws were adapted in the United States, their focus shifted from jurisdiction of the
King to individual protection.

In today’s world, we generally refer to self-defense or defense of others. For example,
if someone in a bar gets into an argument with you and begins to hit you, you have the
right to defend yourself, but, you have a duty to retreat if you are able (i.e. leave the
bar), and you may only use the necessary force to protect yourself, so, you can’t pull a
knife or a gun on a guy who is hitting you only using his fists. That having been said, if
the guy is pummeling you, necessary force might include a weapon to stop the attack.
Defense of others is the treated the same as self-defense, in that it places you in the
shoes of the person being attacked.

Over the past few years gun rights advocates have been very successful at convincing
policy-makers to broaden the law to include instances outside the home. Florida's
statute now states that a “person who is not engaged in an unlawful activity and who
is attacked in any other place where he or she has a right to be, has no duty to retreat
and has the right to stand his or her ground and meet force with force, including deadly
force if he or she reasonably believes it is necessary to do so to prevent death or great
bodily harm to himself or herself or another or to prevent the commission of a forcible
felony.” A person who uses deadly force “is immune from criminal prosecution and civil
action for the use of such force.” As you can see from a simple plane reading of such a
stand your ground law, it dramatically changes when and where a person can use force
against another.  While “defending your castle” is one thing, the “stand your ground”
laws are another level entirely and invite problems and passions to govern behavior in a
way that generally society feels is wrong.

Here for all of your legal needs,
John E. Cereso, Esq.
Nevada Law Group, John Cereso
Practicing in Family Law

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                       Corporate Law
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701 N. Green Valley Pkwy. Ste., #200
Henderson, Nevada 89074
702-946-8100
www.nevadalawgroup.com

How To Form A Corporate Entity

John Cereso of the Legal Minute

Forming of a corporation

Get all the facts you should know from Nevada Law Group as a business owner when it comes to forming a corporate entity in the state of Nevada.

There are three types of business entities; the first is the sole proprietorship.  This is essentially every business that has ever been created that doesn’t fall into one of the other two categories’. Whether it’s a lemonade stand or a retail store every business that is formed that isn’t a corporation or partnership is a sole proprietorship.

In a sole proprietorship your business income is passed directly through your tax return and you have no corporation shield for any action taken against the business, which means you can be sued personally for anything your business does, whether it’s not paying a bill or harming someone.

The second type of business entity is a partnership. A partnership, put simply, is a sole proprietor that has two or more people. A dangerous part of a partnership is you are liable for the actions of your partner. The partner will have the ability to obligate you to debts through the business which will then flow down to you personally should the business fold because a partnership does not get a corporate shield or protection. There is also something called a limited partnership where you have a general partner who has un-limited liability and limited partners who don’t really have the kind of liability that a general partner will have.

There are a lot of nuances in the law regarding general partnerships and limited partnerships and you
must be very careful if you select this type of entity. Your business income in a partnership flows through your personal taxes as well in most cases.

The third and last type of entity is a corporation. A corporation under the law is a non-living entity and is treated as an actual person so far as the law is concerned, it is a type of legal fiction. So a corporation, for example, can sue in its own name for its own benefit.

In a corporation you form a board of directors who hire officers. Stockholders of a corporation are limited in their liability to the amount that they have invested. For example, if I purchase one hundred thousand dollars worth of stock in McDonalds the only money I could possibly be liable for is the one hundred thousand dollars that I have put in. If McDonalds is sued for ten million dollars they can’t come to me, the stockholder, to satisfy that judgment.

The negative part of a corporation is that it is double taxed. Corporations are taxed as a corporation meaning they pay corporate income tax, they then distribute profits to you personally and those profits are then taxed on your individual tax return so taxes are paid twice on the same money. This tax reason is one of the reasons why limited liability companies or LLC’s are the most popular entity formed.

The state of Nevada actually forms more companies and LLC’s than any other state in the country. Limited Liability companies or LLC’s provide you with the same level of protection that a regular corporation does. Members of limited liability companies are not personally liable for the debts of the business and they can’t be sued unless they personally commit fraud or gross negligence as part of the business.

LLC’s are generally cheaper and easier to form and maintain.  Most importantly, limited liability companies, just like corporations, have the ability to be taxed as a C Corp or an S Crop. Many clients are confused about what a C Corp and S Corp means to them as a business. A C Corp means you’re being taxed as a corporation and paying corporation income tax and paying double taxation with distributions to you on your personal income tax return.

S Corp’s, on the other hand, are taxed only on your personal income tax return and no corporation income taxes are paid. Whether your are an LLC or a regular corporation, the election of a C Corp or S Corp designation is strictly for tax purposes and has nothing to do with the underlying entity you are forming. Whether it is a corporation or an LLC, they are created to prevent you from being held personally liable.

Should you have any questions about forming a Corporation or LLC or would like to leave comments for John Cereso please refer to our website www.nevadalawgroup.com. Please visit John Cereso Facebook and Twitter to keep up with John Cereso Legal Minute