Being Motherly Doesn’t Get You Primary
There was a time, not so long ago, when courts 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. 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 primary custody should be awarded to the mother just because she performed the motherly duties. Being motherly is no longer the golden ticket to primary child custody.
Types of Custody in Nevada
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. Actually, because you have 7 days in a week it’s hard to evenly split custody. 60/40 (4 days / 3 days) would still be joint physical custody. A parent with primary physical custody has at least 41% 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 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 of custody that can be worked out. For example, parents may be granted joint legal and joint physical custody. Or they 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.
Best Interest Factors Considered by the Court
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, the court will make custody orders, beginning with the presumption joint physical and legal custody are 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 the court may consider any relevant factors. Except, courts are not to 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;
Preference – 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.
Positive Relationships – 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.
Health – 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.
Relationship – 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.
Siblings – Keeping siblings together is important for the courts. A 17 year old brother requesting to stay with mom more than dad may influence the judge’s custody decision on the 12 year old sister. Step brothers or sisters is also where this factor could be considered.
Domestic Violence – 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.
Abduction – Whether either parent has abducted the child. Abducting a child is a huge no-no with the courts. Leaving the 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.
Primary Custody, Sole Custody Dilemma
The dilemma some parents encounter when requesting primary physical custody is their reasons for requesting primary custody actually forces a judge to consider sole custody, not just primary custody. For example, a mother asking for primary custody because the father is verbally abusive. If a father is abusive 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 shouldn’t just limit his visitation, the court should suspend the visitation. 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 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 to complete our Primary Custody Worksheet. Our Las Vegas child custody attorney can then review your claims for primary custody.