Being Motherly Doesn’t Get You Primary Custody
There was a time, not so long ago, when courts (and divorce lawyers) presumed primary custody should be given to mothers after a divorce. After all, mothers were generally the ones who spent the most time with the children, fed them, bathed them, took care of them when they were sick, and shuttled them to after-school activities.
This presumption has changed in the Las Vegas’s courts. Both in the mindset of people and legally for the courts. Divorce lawyers can no longer argue for primary custody based on their client being the mother.
Being the primary caregiver is no longer a major determining factor in deciding custody issues. Divorce courts now base their custody decisions on many factors, with the sole goal of determining what is in the “Best Interest” of the children.
Courts reject the premise that primary custody should be awarded to the mother just because she performed the motherly duties. Ideally, the Nevada courts want the children to have healthy relationships with both parents, so they default to joint custody whenever possible. When that is not possible, they look at what will give the child the best preparation for their adult life.
Being motherly is no longer the golden ticket to primary child custody.
Nevada has two types of custody: legal custody and physical custody.
Legal custody refers to decisions concerning religion, school, and medical. Joint legal custody means both parents must work together to make these decisions.
Physical custody is the visitation schedule the children have with each parent. Joint physical custody means a 50/50 time split. Because you have 7 days in a week, it’s hard to split custody evenly. 60/40 (4 days / 3 days) would still be joint physical custody. A parent with primary physical custody has at least 61% of the visitation time.
Mothers usually want primary custody because they want to continue taking care of the children. Fathers are usually fine with joint custody, but quickly learn that allowing mom to have primary custody changes the child support calculations significantly.
In a joint custody situation, each parent pays child support. In a primary custody situation, the parent with primary physical custody receives child support.
There are several options and combinations for child custody. For example, parents may be granted joint legal and joint physical custody. Or the court may give joint legal custody with primary physical custody to one parent. Any combination may work if the court finds it is in the best interest of the children. The default is joint legal and joint physical.
Las Vegas’s courts encourage parents to establish their own parenting plan. If they are unable to do this, or the plan they work out is not in the best interest of the children, then the court will make custody orders, beginning with the presumption joint physical and legal custody is in the child’s best interest. The presumption of joint physical custody and joint legal custody is strong with the Las Vegas courts.
If a parent requests primary legal or primary physical custody, then the court considers any relevant factors. Except, courts must not consider one parent over the other based on gender. Nevada law does require courts to consider mandatory factors referred to as “Best Interest Factors.” The factors are:
The wishes of a child, who the court finds is old enough and has the mental capacity to form an intelligent opinion. Children must be at least 12 or 13 before the court will seriously consider their wishes.
The courts feel children benefit from frequent contact with both parents. Therefore the court looks for whether one parent is more likely than the other one to foster a positive and ongoing relationship with the other parent. A parent who is unwilling to work with the other spouse could find themselves giving up joint custody.
The mental and physical health of each parent and whether one parent has a health problem that will interfere with caring for the children. Mental illness, attempts at suicide are issues the court may consider.
The relationship each parent currently has with the children. This is the factor where mothers feel being a caregiver is reflected. The court is not looking for motherly. They are looking for dangerous relationships or unhealthy relationships between the child and parent.
Keeping siblings together is important for the courts. A 17-year-old brother who is requesting to stay with mom more than dad may influence the judge’s custody decision on the 12-year-old sister. Stepbrothers or sisters is also where a judge would consider this factor.
Whether either parent has a history of child abuse or domestic violence against the child, the other parent, or any other household member. This may be the strongest factor considered by the court.
Whether either parent has abducted the child. Abducting a child is a huge no-no with the courts. Leaving home with the kids to let tempers simmer down may not be considered an abduction. Leaving the state with the kids and refusing to tell the father where you are could be.
According to the “Best Interest” statute, if the court decides not to award either joint legal or joint physical custody when one parent has requested it, it must explain the reasons for denying the request. Also, according to the law, the court must “set forth special findings” concerning each factor it considered. If the court fails to establish the findings for awarding primary physical custody the other parent can appeal the decision.
The fastest way to lose custody of your children is to show you are not in control of yourself. Divorce is one of the most stressful events you will ever go through. There are places for healthy emotional release, just not in front of the kids.
The most common reasons to lose custody can be attributed to the following:
- Physical abuse of the child
- Mental/emotional abuse of the child
- Domestic violence
- Alcohol and drug abuse by the mother
- Child abduction
- Unwillingness to work with the father regarding the child’s interests
Naturally, these all apply to fathers as well. If your ex’s divorce lawyers can show evidence of any of these to a judge, it will materially hurt your chances at even joint custody, much less primary custody.
The is a dilemma some parents encounter when requesting primary physical custody. Their reasons for requesting primary custody forces a judge to consider sole custody, not just primary custody. If you are looking to pursue primary custody, speak with your divorce lawyers to see whether or not this may happen in your case.
For example, a mother may ask for primary custody because the father is verbally abusive. If a father is abusive, then he could be abusive under any custody schedule. Allowing the father visitation 2 days a week instead of 3 doesn’t protect the child from the abuse. The court may not just limit his visitation. The court may suspend the visitation entirely. Sole custody or suspended visitation is not a decision the court will not take lightly.
The major take-away is the courts start with joint legal custody and joint physical custody. Either parent who is looking for primary needs to review the “best interest” factors. The parent looking for primary has the burden to prove their case. We recommend parents start by completing our Primary Custody Worksheet. Our Las Vegas child custody attorney can then review your claims for primary custody.