What is Legal Custody and Physical Child Custody?
Child custody refers to the rights and responsibilities that parents have regarding the care of their children. There are two types of custody: legal custody and physical custody.
Physical custody is what most people think of when you consider a judge making decisions as to which parent has custody of a child. Physical custody is who your children are physically with, whose home they physically reside in. For example, what days (and nights) the child stays with the dad and what days with the mom. A custody schedule documents the days and times each parent has the child.
On the other hand, legal custody refers to control over the larger decisions which affect a child’s life. These decisions may include what medical treatment the child will receive, what type of schooling the child will participate in, and what religion the child will be brought up in. It is common that even when one parent has primary physical custody, meaning the children spend much more time with them, both parents will share joint legal custody and can participate in these larger decisions.
What Does Legal Custody of a Child Mean?
Legal custody is usually the first determination a court will make in a custody proceeding. In 2009, the Supreme Court of Nevada defined legal custody by stating that, “Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing.”
Thus, a parent having legal custody of a child has the right to seek medical treatment for the child, obtain medical records, enroll a child in school or homeschool, access education records, and decide the nature and extent of the child’s religious upbringing.
The court may award one parent sole legal custody or award legal custody to both parents jointly, designated as “joint legal custody.” The default is to give both parents joint legal custody. Sole legal is difficult to obtain, absent one parent being unfit.
What Does Physical Custody of a Child Mean?
Once legal custody has been determined, then the court will need to decide the issue of physical custody. The Nevada legislature has defined physical custody to mean, “the physical care and supervision of a child.”
The Supreme Court of Nevada has expounded upon this definition and distinguished it from legal custody, stating that, “Physical custody involves the time that a child resides with the parent and that parent provides supervision for the child and makes the day-to-day decisions regarding the child.”
Thus, what the child will wear, what the child will eat, the activities in which the child will participate, whether they will be allowed to play video games or watch television during the time the child is with that parent, are examples of the decisions that will be made by each parent during his or her custodial time. Each parent is entitled to make these decisions during his or her custodial time without consulting the other parent.
What is Considered Joint Custody in Nevada?
Joint physical custody refers to a parenting arrangement in which both parents share custody of the child, typically through a time-sharing schedule that provides each parent with nearly equal residential time—often interpreted as a 60/40 split. This means the child resides in each household for 3 to 4 days on a weekly schedule, reflecting an equitable division of parenting responsibilities.
In Nevada, joint custody serves as the foundational legal presumption in family law cases, based on the principle that both parents have equal rights and responsibilities concerning their child’s well-being. Judges are guided by state custody laws, which mandate awarding joint physical custody unless compelling evidence shows that such an arrangement is not in the child’s best interest. In such decisions, the court evaluates the proposed parenting plan, the level of cooperation between parents, and the stability each can offer in their respective households.
The court will presume joint physical custody is in the best interest of the child if the parents have agreed to joint custody or each parent has tried to establish a meaningful relationship with the child, even if attempts have not been successful.
A Nevada judge will find that an award of joint physical custody will not be in the best interest of the child if the court determines that a parent is unable to adequately care for a child at least 40% of the year or if there has been a finding that a parent engaged in one or more acts of domestic violence against the child, or any person living with the child.
What do typical joint custody schedules look like?
Parents can agree on a custody schedule. The schedule may depend on work schedules, the parents’ proximity to one another, the location of the children’s school, etc. If parents cannot agree on a schedule, the judge will pick the custody schedule.
The least confusing type of joint custody schedule would be an alternating bi-weekly or weekly schedule where one parent has the child for one week, and the other parent the next week. This schedule is used in situations where there is a high level of parental conflict, or when the children would benefit from less exchanges. Less exchanges means less interaction between the parents.
To allow children more frequent contact with each parent, a 3-4-4-3 schedule can be used, where the child is with parent A for 3 days, then parent B for 4 days, then goes back to parent A for 4 days and back to parent B for 3 days. Another common schedule is for the child to reside with parent A for 5 days, parent B for 2 days, parent A for 2 days and then spend five days with parent B, called a 5-2-2-5 timeshare.
A custody schedule will also address holidays and vacation schedules with each parent usually entitled to two weeks of vacation time per year. The parties will typically alternate holidays and the child’s birthday.
Once a schedule is in place, parents are free to deviate from it based upon mutual agreement, encouraging the parents to collaborate in the best interests of their children.
What is Primary Physical Custody?
Primary physical custody is a court-designated arrangement when one parent, the custodial or primary parent, has the child more than 60% of the time.
What does Rivero v. Rivero say about calculating timeshare?
Prior to Rivero, for families and their attorneys going through the process of a custody determination in Nevada courts, it was not clear if a joint custody award required an equal, strict 50/50 custody split or if some unequal timeshare could still qualify as joint custody. In 2009, Rivero v. Rivero was published by the Supreme Court of Nevada to give parties and attorneys more guidance on what constitutes “joint physical custody.”
In Rivero, the Court determined that any custody arrangement where each party has physical custody of the child at least 40% of the time is consistent with joint physical custody. Thus, any time-share split from 50/50 to 60/40 is deemed joint physical custody by Nevada courts.
The intention of joint physical custody is for parents to have an approximately equal timeshare, but the Court recognized that an exactly equal time share is not always possible, “given variations inherent in child rearing, such as school schedules, sports, vacations, and parents’ work schedules, to name a few.”
In general, if a parent has custody of a child for at least 146 days per year, this meets the 40% threshold. To calculate whether a parent has 146 days per year with the child, the court would look at the number of days during which the parent is able to make day-to-day decisions regarding the child. This includes the time that the child is sleeping, in school or in the care of a third-party at the custodial parent’s discretion. The Court also includes days set forth in the regular visitation schedule as well as holiday visitation and vacation time.
What is visitation when one parent has primary custody?
When one parent has primary physical custody, the other parent may be granted visitation. Visitation will be less than 146 days per year.
Depending on the situation, visitation may be unsupervised or supervised. A judge may order supervised visitation for several reasons, including prior allegations of abuse, domestic violence, or child abduction, concerns about a parent’s mental health and/or substance use, or if the parent has had little to no contact with the child prior to visits. If supervised visits are ordered, a neutral third party will be present when the non-custodial parent has time with their child. These visits may take place at the non-custodial parent’s private home or in a public place, such as a dedicated supervised visitation facility.
What are typical visitation schedules?
The most common visitation schedule is when the non-custodial parent has visitation every other weekend. Some parents may wish to give the non-custodial parent access to visitation every weekend, if this aligns with the non-custodial parent’s work schedule. Every weekend could be considered a joint custody schedule. It depends on when the weekend starts and ends. Remember, 3 days a week is more than 146 days a year and therefore could be joint custody.
The other common visitation schedule is called an “out-of-state” schedule because the parent does not live in the same state as the child. An out-of-state schedule will typically be every other Thanksgiving, one week Christmas, one week Spring Break, and four or five weeks during the summer. This type of schedule aligns with the child’s school attendance.
Do Moms Automatically Get Sole Custody in Nevada or Primary Custody?
A rumor or myth we hear a lot is that the mother will automatically be awarded more custody time. This assumption is based on old law, called the “Tender Years Doctrine”. But this law is no longer used as fathers have rights too.
The Tender Years Doctrine required a child under 2 years old to be placed with their mother, unless there had been a finding that the mother was unfit. Laws associated with the Tender Years Doctrine were overruled by the Nevada Supreme Court in 1979. That same year, the Nevada legislature made the “best interest of the child” the sole focus of custody determinations.
Fathers facing child custody battles in Nevada today no longer must worry about gender biases affecting the judge’s determination in their case. Fathers have the same rights as mothers, and mothers are no longer entitled to greater custody time than fathers.
How is Physical Custody Determined by a Judge?
The Nevada Legislature has made it abundantly clear that when deciding the custody arrangement of a minor child, the sole consideration of the court is the “best interest of the child”.
To determine what custody arrangement would be in the “best interest of the child”, the court may order an investigation into whether physical custody is appropriate. Judges will try to keep children from ever having to appear in court. However, if necessary, the judge can order a certified mental health specialist to interview the child. In rare cases, the judge may have to appoint a custody evaluator or guardian ad litem to speak for the child’s best interests.
Lower courts have a great deal of discretion in custody determination. However, Nevada law does require that whatever reasoning a court uses to justify the award of custody, the court must clearly set forth the specific findings in its final custody order. The Supreme Court of Nevada has reversed many custody cases due to the lower court making its decision without setting forth the specific facts considered in making its determination.
What are “Best Interest” factors?
To provide guidance to courts who are seeking to determine which custody arrangement is in the ‘best interest of the child’ the Nevada legislature has set forth the following factors in Nevada Revised Statutes 125C.0035:
- The wishes of the child if the child is of sufficient age (at least 12 or 13 years old) and capacity to form an intelligent preference as to his custody, also known as teenage difference,
- Any nomination of a guardian for the child by the parent,
- Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent,
- The level of conflict between the parents,
- The ability of the parents to cooperate to meet the needs of the child,
- The mental and physical health of the parents,
- The physical, developmental, and emotional needs of the child,
- The nature of the relationship of the child with each parent,
- The ability of the child to maintain a relationship with any sibling,
- Any history of parental abuse or neglect of the child or a sibling of the child,
- Whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child, and
- Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.
Being able to present as much solid evidence in support of those factors will be the best way to ensure that the court has reason to decide in one party’s favor over the other. If the court has only one parent’s word against the other, without any documentary evidence or witness testimony, the court will have to make its decision based on which parent it finds to be more believable.
What are NOT “Best Interest” factors?
There are many things the court will NOT consider when determining what is in the best interest of the child. A parent having an affair, or a parent being a “narcissist” are not relevant factors. When parents are angry with each other, they may want the court to hear about the other parent having an affair, or not being a “good person”, selfish, or uncaring. These are NOT factoring the court will typically believe relevant to a custody schedule. The court will stay focused on factors relevant to the best custody schedule.
Does my child’s preference matter?
Child preference refers to who your child wants to live with. This may include considerations of who your child has had a deeper relationship with prior to the custody determination, who the child feels safer or more comfortable with, or which parent lives closer to the school or activities the child wants to attend.
The age of the child will affect the weight of the preference. A 7-year old’s preference might not be influential as a 13-year old’s preference. Courts find older children are better equipped to understand the consequences of voicing their preference. If applicable, the Court will consider child preference before issuing its order.
Yes, your child’s preference can affect the judge’s determination as to what custody arrangement best suits each family. Your child can voice this preference directly through testimony in court if the case proceeds to trial. If old enough, your child can also submit a written declaration addressing their preferences.
What is teenage discretion?
Teenage discretion is not child preference. Teenage discretion is where the teenager can to choose when to follow the court ordered custody schedule. A teenager might not want to go to their dad’s house this week. Trying to force the teenager to go can cause more harm than good.
Courts understand it can be difficult for parents to control a teenager who is 15, 16, or 17. To prevent this from being an issue, the judge may establish a custody order, while giving the teenager discretion. This means the teenager can choose to go or not and their decision is not held against either parent.
Will the court interview the child?
In some circumstances, the court will interview the child as to their preference for custody. This is an option reserved for when the court has concerns or doubts about the child’s voiced preference. One such example is when the judge has reason to believe the child has been coerced into stating their preference for one parent. The judge may interview the child herself or appoint a mental health expert to interview the child on the court’s behalf.
What is De Facto primary physical custody?
De Facto primary physical custody is a situation where a custody determination has not been made by a court, yet one parent is acting as the sole primary caregiver for the child, taking on most of the day-to-day needs of that child.
If parents have been operating in a de facto primary custody situation prior to a court order and the primary caregiver parent wants to remain in this role, they may do so by demonstrating all that they do for the child on a regular basis and how much time the child spends with them as opposed to the other parent. If brought to court, the judge may consider a de facto primary custody situation as a reason to order a formal primary physical custody scenario.
What is Sole Custody in Nevada?
Sole custody refers to a court-ordered arrangement in which one parent—the custodial parent—has exclusive physical custody and full decision-making authority over the child’s residence, care, and daily life. The noncustodial parent is typically denied physical access, and in many cases, does not receive even supervised visitation unless specifically granted by the court through provisions like telephonic or video conference visitation. This form of custody order is generally reserved for extreme circumstances involving concerns for the child’s welfare, such as abuse, neglect, or serious family conflict, and may approach the legal threshold for termination of parental rights. Because of its significant and often permanent impact, sole physical custody decisions are made by a judge based on the best interest of the child standard and require compelling evidence and legal representation.
How does Roe v. Roe define sole physical custody?
Last year, in 2023, the Nevada Supreme Court offered more guidance on defining sole physical custody and when this extreme custody option is appropriate.
In Roe, the Court explained that an order for sole physical custody may only be entered if the noncustodial parent is found to be unfit for the child to reside with or if there are other specific findings and an adequate explanation as to why any award of physical custody to that parent is not in the best interest of the child.
District courts in Nevada are required to order the least restrictive arrangement possible that is within a child’s best interest. If a less restrictive arrangement is available, or proposed and rejected, the district court must provide an explanation of how the interest of the child is served.
If you are facing a custody battle, know that sole custody is an extreme option rarely ordered in Nevada courts. If the other parent in your case is requesting sole custody or you have reason to believe that the judge may consider this option in your case, contact the custody attorneys at Right Lawyers to discuss your situation.
Where Can I File my Custody Case?
You will file your custody case in a Court within the state of your physical residence (if filing a divorce), and the state of physical residence of the child if only a custody matter is filed. Where to file a divorce or custody case is called jurisdiction. Which means what state has authority to make these orders.
What is jurisdiction in Nevada?
Jurisdiction is defined as the court’s power over the parties and the subject matter of a controversy allowing it to make decisions regarding the issues of the controversy or case. Certain factors must exist for a court to assert jurisdiction over a child custody proceeding.
A court in Nevada may take initial jurisdiction over a child custody proceeding if Nevada is the child’s “home state.” The Nevada Legislature has defined “home state” to mean the state in which a child lived with a parent, or a person acting as a parent, for at least six consecutive months immediately preceding the commencement of a child custody proceeding. If a child is less than six months old, the home state would be the state in which the child lived from birth with a parent or person acting as a parent. The six-month period in both instances may include temporary absences.
Nevada courts may also exercise jurisdiction over a child custody case when another state cannot do so or chooses not to. Another state may be barred from establishing home state jurisdiction by meeting the criteria specified above. Another state may also choose not to exercise jurisdiction on the grounds that Nevada is the more appropriate forum and there is a significant connection between the child and at least one parent in Nevada, and substantial evidence concerning the child’s care, protection, training, and personal relationships exists in this State.
As an additional measure, Nevada can also exercise initial jurisdiction over a child custody proceeding if no other state has jurisdiction under the above conditions.
In emergency situations, a court in the State of Nevada may assert temporary emergency jurisdiction in order to make rulings for the protection and welfare of the child. The legislature has clearly defined the scope of this emergency jurisdiction to pertain only to situations where a child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.
If there has been no previous child custody determination made by a court having jurisdiction over the child, then this temporary order will remain in effect until a court having regular jurisdiction makes a judgement. If a proceeding in a state having proper jurisdiction has not been or is not subsequently commenced, the temporary emergency orders made by this state may become permanent and Nevada would then become the home state of the child.
However, if a court in another state having jurisdiction has made a prior custody determination, the court in Nevada shall immediately communicate with the other court to resolve the emergency, protect the safety of the parties and the child, and determine a time period for the duration of the temporary order. The temporary order will expire at the end of that period or once the other state makes an order.
Can Unmarried Parents File for Custody?
Yes, they can. You do not need to have been married to begin a custody case. If parents are unmarried, a custody case will require a determination of parentage. Parentage is the process of legally defining who the parents are. The mother is whoever birthed the child. The father is established by DNA, marriage, or co-habitation during birth.
Parties may stipulate parentage if they agree the father is in fact the biological parent of the child.
What are presumptions to paternity?
Chapter 126 of the Nevada Revised Statutes governs an action to establish paternity for a child. Under Nevada law, a man is conclusively presumed to be the natural father of a child if blood typing or genetic testing show, by a probability of 99 percent or more, that he is the father.
In the absence of blood typing or genetic testing, there are several situations in which a court will presume that a man is the natural father of a child. However, this presumption may be overcome, or rebutted, by presenting clear and convincing evidence to the court that he is not the father.
The rebuttable presumption that a man is the natural father of a child attaches if:
- A child is born during the time the man was married to the natural mother or within 285 days after termination of the marriage,
- The man has cohabitated with the natural mother for at least six months before and through the period of conception,
- The man who attempted a lawful marriage with the child’s mother, but it is, or could be declared invalid and the child is born during the attempted marriage, or within 285 days of the termination thereof, or,
- The man receives a child under the age of majority into his home and openly holds the child out as his natural child.
Can Parents File an Uncontested Custody Case?
Yes, they can. Similarly to an uncontested divorce, if parents are in agreement about what custody situation is best for their children, they can jointly file an uncontested custody case. In this situation, the court will defer to the parent’s agreement. If parents agree about child custody, the court will not perform a sperate inquiry into what custody arrangement will be in the “best interests” of the children.
Is mediation mandatory?
In any disputed custody case, parties will be required to attend mediation prior to an initial custody hearing before a judge. Typically, a judge will refer parties to mediation, but you also may request mediation as a party involved in a child custody case. Parties may agree to participate in mediation either through a private mediator or through the court-connected mediation program, referred to as the Family Mediation Center.
At the Family Mediation Center, parties will meet with a neutral mediator who will talk to the parties, separately and together, to clearly define the disputed custody issues and to come to a mutual agreement regarding the custody of their minor children.
The mediator will then report to the court whether the parties were able to reach an agreement about the proposed child custody arrangement. Through the mediator, parties may come to a total agreement, a partial agreement, or no agreement at all.
If at least a partial agreement is reached, the mediator will prepare a ‘parenting plan’ outlining the terms that the parties negotiated. This plan will be signed by both parties and submitted to the judge to be entered as an order of the court.
How Do I Modify Custody?
Once an order regarding the custody of minor children has been entered by the court, it can be very difficult to change.
The parent seeking to modify custody must first file a motion with the court requesting the change. A parent seeking a change of primary physical custody, would have had to show two things to have the custody order modified. They must show: 1) a substantial change of circumstances has occurred since the last order, and 2) the proposed custody change is in the child’s best interest.
The parent requesting the change in custody must satisfy both prongs of the test. The “best interests” of the child will be analyzed under the factors outlined in Nevada Revised Statutes 125C.0035, as discussed above. A substantial change is the more nuanced part of the test.
What is a “Substantial Change” of circumstances?
Romano v. Romano is the case which discusses a “substantial change of circumstances” as it relates to a request to modify child custody. In Romano, the Nevada Supreme Court held that “no modification of custody should occur unless and until there has been a change of such magnitude that justifies the change, and the change requested must be shown to be in the child’s best interest.”
The court did not detail what a substantial change is. They leave that decision to the judge listening to the case. Substantial changes can be a single big event, or multiple smaller events. For example, one parent getting a DUI with the child in the car, or a parent with a serious drug addiction would be a single event classified as a substantial change. A parent not cooperating with visitation exchanges or being extremely harassing over an extended period could be smaller events considered a substantial change.
One additional thing to bear in mind when preparing to seek a modification of custody is past actions. In other words, if an issue was raised at a prior custody proceeding, a parent cannot keep going back and alleging the same issues in support of a custody change. Once facts are raised and a judge decides, those facts typically cannot be raised again.
How Can I Relocate to Another State with My Child?
After custody orders have been entered by a Nevada court, a parent wishing to relocate with their children must follow a specific protocol before moving to avoid serious repercussions.
First, the parent must, as soon as possible and before the planned move, attempt to obtain the written consent of the other parent. If the other parent refuses consent, the moving parent may petition the court for permission.
When asking the court permission to move, the court requires the points in NRS 125C.007 to be satisfied. The first of these points is the moving parent has a good faith reason for the move, the best interests of the child are served with the move, and the child and parent will benefit from an actual advantage because of the move.
If these points are confirmed by the judge, the judge is allowed to weigh other factors to determine if the relocation should be granted. Will the relocation improve the quality of life for the child? Can a visitation schedule be set that would allow the non-relocating parent to continue a relationship with the child?
Can I relocate if I have primary physical custody?
Yes, but you would still need to go through the factors discussed above. In theory, a parent with primary custody wishing to relocate should be easier than when the parents have joint custody because a primary custody schedule means the non-relocating parent already has less than equal custody time. However, having primary custody does not make a relocation request automatically granted.
Do I need the court’s permission to leave the state temporarily with the child?
If you are intending to leave your current place of residence permanently, or relocate, you will need permission from the court, or the other parent. You do not need permission to take your child on vacation.
Some parents are worried that going on vacation or taking the child to California during the summer could be considered kidnapping. This is not kidnapping because you are leaving temporarily and not “permanently” withholding the child from the other parent.
If you have a court order, you should only take your child out of the state during your custody time, and you should give the other parent notice along with information about where you will be. Taking the child out of state during the other parent’s time could be a violation of your court order.
Can I Terminate the Other Parent’s Rights?
Termination of parental rights is reserved for the most extreme situations. For termination of parental rights to be appropriate, a court must find that 1) the termination is in the best interests of the child, and 2) other specific grounds exist, such as:
- Abandonment of the child,
- Neglect of the child,
- Unfitness of the parent,
- “Failure of Parental Adjustment”,
- Risk of serious physical, mental or emotional injury to the child if he were returned to, or remains in, the home of his parent or parents, or
- “Only token efforts by the parent or parents” (to do the things that parents do for children).
Can I terminate my own rights?
No. Parental rights can only be taken.
Terminating parental rights would terminate any child support obligations. Therefore, any parent wanting to avoid child support would give up their parental rights. This is why parental rights can only be taken and not given up.
However, if a custodial parent wants to terminate the other parent’s rights, and the non-custodial parent agrees, then an agreement can be made in court. Terminating rights is a permanent decision, so be sure you have thought this through. It may be difficult, if not impossible, to regain your parental rights after termination.
How Does Child Custody Affect Child Support?
When one parent has sole or primary custody, the non-custodial parent will be required to pay child support to the custodial parent because the type of custody affects Nevada’s child support calculator.
The parent with primary custody receiving child support makes sense because the custodial parent, because of having the children the majority of the time, will naturally bear more of the expenses attributed to taking care of the children. When parents have joint custody, child support is then based on which parent makes more monthly gross income.
If parents have a joint custody situation, the parent with the higher income will be required to pay child support to the lower income parent. This is done with the desire to ensure some stability in the living standard that children enjoy when they switch back and forth between parents.
Can I Refuse Custody if The Other Parent Does Not Pay Child Support?
No. Child custody and child support are two separate issues. You may not punish a non-paying parent by refusing to allow them visitation or custody of their child.
If a parent is violating a child support court order, you can bring that parent back to court to enforce that order. However, if the court determines that a parent’s non-payment of child support makes the parent financially unfit to care for a child, or part of a larger scheme to distance themselves from the child, the court may change the visitation or custody schedule in place. However, you cannot act alone to change custody based on non-payment of child support. You need a judge to make this decision.
Contact A Child Custody Lawyer Near You Today About Sole Custody and Joint Custody in Nevada
If you are looking at moving forward with divorce proceedings and need an experienced child custody lawyer on your side contact the Right Divorce Lawyers. We have helped thousands of clients navigate these difficult times attempting to get the outcome that will be both best for them and for their children. If you need help with securing joint custody or sole custody in Nevada reach out to our firm today to set up a free 15-minute consultation call today.
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