How to Get Primary Physical Custody?

There are two main types of child custody: legal and physical. Legal custody refers to the responsibility for making major decisions concerning the child, such as those related to their health, education, and religious upbringing. According to the Supreme Court of Nevada, legal custody is defined as having the basic legal responsibility for a child and the authority to make these crucial decisions.

On the other hand, physical custody determines where the child will physically reside and with whom they will spend each day. This includes decisions regarding the child’s residence, as well as who will provide the majority of the care and support for the child. It is common for one parent to have primary physical custody, meaning the child will live with that parent most of the time, while the other parent may have visitation rights. Despite this, both parents often share joint legal custody, allowing them to collaborate on decisions that affect the child’s well-being, such as the child’s health, education, and other important aspects of their upbringing.

In many cases, even though one parent may be granted primary physical custody, the court may still grant both parents legal custody. This ensures that both parents can participate in making major decisions about the child’s life and future, balancing the responsibilities between the custodial and non-custodial parent. The decision on who is awarded primary physical custody depends on several factors, including the child’s best interests, the parenting abilities of both guardians, and the living arrangements available to each parent.

What is Joint Physical Custody?

Joint physical custody means that each parent has roughly equal time. It doesn’t need to be exactly 50/50. A 60/40 split can be considered joint physical custody. A parent only needs 146 days of custody a year, to have joint physical custody. Which averages 3 days a week. This means the difference between joint custody and primary custody could be one less day a week of custody. If you have custody 3 days a week and you have a joint custody arrangement. If you only have custody 2 days a week the other parent has primary custody.

Nevada judges are required to order joint physical custody unless the court can determine that joint physical custody is NOT in the best interest of the child. The court will presume joint physical custody is in the best interest of the child unless it is determined joint custody is NOT. Judges use the best interest factors to determine the best custody schedule.

What are Typical Joint Physical Custody Schedules?

A parent only needs 146 days of custody a year to have joint custody. The simplest joint schedule is an alternating weekly schedule where the parents exchange the children at the same time every week.

The more common joint schedule is a 3-4 schedule, where the child is with mom for 3 days, then dad for 4 days, then goes back to mom for 4 days and back to dad for 3 days. Another common schedule is for the child to reside with mom for 5 days, dad for 2 days, mom for 2 days and then spend five days with dad. This is called a 2-2-5 schedule.

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. This would be 219 days or more a year. Another way to look at this is the other parent has less than 146 days of custody a year. A parent who only has custody two days a week does not have joint custody. The parent having custody 5 days a week would have primary custody. The parent with two days a week has what the court call “visitation”.

Rivero v. Rivero defined the limits of joint physical custody versus primary 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 timeshare split from 50/50 to 60/40 will be deemed joint physical custody by Nevada courts. Therefore, an award of primary physical custody requires that one parent have physical custody of the child at least 61% of the time.

The 60/40 rule is not a black and white line to determine who has primary custody. Courts can give a parent joint custody even though they only have 38 percent of time. Courts can also give a parent primary custody when then only have 48% of the time. Time is just one way to label schedule. The ultimate determination of primary custody will always be based on what the court determines to be “in the best interest” of the child.

How to Ask for “Primary Physical Custody” in Nevada?

Some parents come to court with the mistaken assumption that they should ask directly for “primary custody”. This is a determination for the court to make and not a request that a parent should be making.  Another mistake is to ask the court for “fifty fifty” or “equal time”.   This does not help the court determine what days the child should be with you and what days with the other parent.  Instead, ask for a specific custody schedule that works in the best interest of the child.

For example, come to court ready to say, “Judge the child should be with me on ________________ (fill in the blank) because _________________ (fill in the blank).  You want to provide the judge the custody schedule you think is best for the children, and then explain why that schedule would be best.

Be prepared to demonstrate to the court how your proposed schedule is the best interest of the child.  This may include a demonstration of how the schedule supports the child’s participation in extracurricular activities or works best around your work schedule.  Maybe the proposed schedule works best because you can get the child to school Monday through Friday while the other parent works too early. An experienced child custody attorney can assist you in creating this schedule.   

How Does a Judge Determine Primary Custody?

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 interests of the child.” To determine which custody arrangement is in the “best interest of the child”, the Nevada legislature has set forth the following best interest factors in Nevada Revised Statute § 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 child preference.

  • For example, a teenager’s stated preference for living with one parent over the other will be considered by the court, especially if the teen can explain why this preference exists and this reasoning is supported by the court.

• Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent,

  • For example, if one parent is very flexible with the other’s parent’s access to visitation of the child and has the schedule and resources to maintain this flexibility, the court is much more likely to be comfortable awarding that parent primary physical custody.

• The level of conflict between the parents,

  • For example, the personal relationship between parents and how much or how little they are able to get along, as evidenced by behavior within or outside of court.

• The ability of the parents to cooperate to meet the needs of the child,

  • For example, how much or how little parents are able to reach agreements as it relates to the child. The more successfully that parents are able to co-parent their child, the more likely an award of joint physical custody is.

• The mental and physical health of the parents,

  • For example, if one parent has a physical health issue which severely restricts their mobility or a mental health issue which severely restricts their ability to participate in routine life events, the court may be less likely to award that parent a significant portion of custody.

• The physical, developmental, and emotional needs of the child,

  • For example, if the child has specific developmental needs and one parent has demonstrated a higher ability to care for that child’s interpersonal needs, the court may be more likely to grant that parent primary physical custody.

• The nature of the relationship of the child with each parent,

  • For example, if one parent was the primary caretaker before the parent’s court case began, and the child has a much closer bond to that caretaker, the court may be more likely to award that parent with primary physical custody.

• The ability of the child to maintain a relationship with any sibling,

  • For example, if one parent has children from another marriage who the shared child has a close relationship with, the court may be more likely to award that parent with primary physical custody so that the shared child can retain a strong relationship with those siblings.

• Any history of parental abuse or neglect of the child or a sibling of the child,

  • For example, any documented prior abuse or neglect of a child by a parent will likely limit the court’s willingness to award that parent with physical custody, outside of supervised visitation, without evidence of that parent’s rehabilitation.

• 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

  • For example, if one parent has a domestic violence restraining order against the other, this will be considered by the court when making custody decisions.

• Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.

  • For example, if one parent has previously abducted the child to interfere with custody orders, the court may be much less likely to award the abducting parent physical custody of the child.

To better understand how the “best interest factors” apply to your case, it may be helpful to complete this Best Interest Factors Worksheet.

How to Get Primary Custody as a Mother? Do Mothers Always Get Primary Custody?

It is a common myth that judges prefer mothers in custody cases. Judges base their decisions on the best interests of the child. Not the gender of the parent.

The idea that courts prefer mothers wasn’t always a myth. It use to be true. When divorce began to be socially acceptable, gender roles were different. Parenting was the mother’s job. Back then, fathers were the breadwinners and mothers stayed home. Fathers went to work every day while the mothers tended to the children.

Back then Judges would typically see the mother as better suited for this role. There was even a legal rule called the “tender years doctrine.” This rule said a newborn belonged with a mother for up to two years. This is no longer a rule.

Times have changed. Mothers are now also income earners. Fathers take on more of the child-rearing duties. Today’s judges have changed with the times.

Laws or rules giving mothers preferential custody rights no longer exist. Judges have guidelines to determine what is in the best interest of the children. The gender of the parent is not in those guidelines.

Are Some “Best Interest Factors” More Important Than Others?

Yes, certain best interest factors will be more heavily weighted in a court’s custody determination. Often these are the factors associated with negative, dangerous behaviors. For example, if one parent has a documented history of drug abuse or domestic violence, this singular factor may prevent the court from awarding this parent with joint physical custody, despite the positive relationship between the child and that parent, the relationship between the parents, or the child’s relationship with other siblings.

What are NOT “Best Interest” Factors?

There are many things that the court will not consider when determining what is in the “best interest” of the child. These may include things like the parent’s religious choices, a parent’s beliefs about childrearing, a parent’s cooking abilities, or what has been the typical division of labor while living together.

Mothers are generally the parent who takes care of more of the child’s needs. Mothers are typically the parent who prepares the child’s meals, schedules the child’s medical appointments, and cares for the child when he or she is sick. The judge knows mothers are generally more tuned into the child’s daily needs. But these are not strong best interest factors if both parents are still living together.

When parents are angry with each other, they may want the court to hear about how the other parent is a “narcissist” or “had an affair”. These are not going to be factors the court pays too much attention to. Character of a parent is only relevant if someone this character negative affects the child, and you can explain how your custody schedule limits these affects.

How is a Child’s Preference Different Than Teenage Discretion?

If your child is old enough, their voice may be heard. The judge may allow a child to provide their opinion to which parent they would like to spend more time with. The judge will weigh their stated preference. The weight this “Preference” is given will depend on the child’s maturity, credibility, and other best interest factors. Preference is just one factor a judge may consider. A child’s preference will almost never be the main factor.

Preference is different than “Teenage discretion”. Teenage discretion refers to a teenager not wanting to follow a judge’s schedule. Teenagers who are 15 or older might not want to follow a court schedule. Judges understand how forcing a child to follow a schedule can put the child and parent at odds with a parent. To remedy this issue, the court will order a schedule and then say this schedule is subject to the teenager’s discretion. In other words, if the child doesn’t want to go to mom’s this week, he or she doesn’t need to. And dad would not be in trouble for not forcing the child to do so. A judge is not obligated to give the teenager discretion. But they will typically do so if forcing the teenager to follow the schedule is becoming a problem.

How to Get a Final Custody Order in Nevada?

There are three basic ways that a final custody determination can be made: through a default, through an agreement, or after a hearing or trial. A custody determination made through an agreement is as it sounds.

A custody determination made through default may be granted when the defendant fails to respond within 21 days of being served with the summons and complaint. This will typically result in a custody decree being granted that is identical to what was requested in the complaint by the parent who filed the custody case. A custody determination made after a hearing or trial will result when both parents participated in the process but cannot reach an agreement. In this case, the court will determine what custody determination is in the best interest of the child.

After the parties reach an agreement, the timeline to request a default has reached, or a hearing has been held on the issue of custody, then the parent(s) will need to submit forms requesting a final custody decree. If the custody determination was based on an agreement, the terms included in the custody decree should be identical to those in the parent’s agreement. If the custody determination is to be based on default, the terms included in the custody decree can be whatever terms were in the complaint, as long as those terms reflect a basic support of the best interest of the child. If the custody determination is made after a hearing or trial, the terms included in the custody decree need to be the terms ordered by the judge.

What is Visitation Custody?

When one parent has primary physical custody, the other parent may be granted visitation. Visitation will be time spent with the children, which should be less than 40% of the time or less than 146 days per year.

Depending on the situation, visitation may be unsupervised or supervised. A judge may order supervised visitation for a number of 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 Schedules for Primary Physical Custody?

The most common typical schedule of primary custody is that the non-custodial parent will be given visitation on every weekend or every other weekend. Some parents may wish to give the non-custodial parent access to visitation every weekend, if this aligns with non-custodial parent’s work schedule or routine. However, this results in the custodial parent not getting to spend any weekend time with their children. If the children are school age, this may prevent the custodial parent from having leisure time with their children .

Parents in a primary custody situation may make specific schedules for holidays, allowing for children to switch back and forth between parents for each respective holiday or rearranging visitation time for the non-custodial parent when it conflicts with holidays.

What is “De Facto” Primary 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 the majority 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 Physical Custody?

Sole custody in Nevada means that only one parent has physical custody of the child. The other parent has little to no physical access to the child, not even visitation. Sole physical custody is only awarded in the most extreme situations, like if one parent is incarcerated. Contact between the child and the noncustodial parent could be limited to telephonic or video contact.

In 2023, the Nevada Supreme Court explained in Roe v. Roe 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.

How Does Custody Affect Child Support in Nevada?

When one parent has sole or primary custody, the non-custodial parent is required to pay child support to the custodial parent. This is because the custodial parent, as a result of having the children with them the majority of the time, will naturally bear more of the expenses attributed to taking care of the children. Only the noncustodial parent’s income will be considered. If parents have a joint custody schedule, both parent’s incomes will be considered, with the higher earning parent paying child support to the lower income parent. To see this in action view our Child Support Calculator.

Speak With Experienced Las Vegas Child Custody Lawyers Near You

If you are dealing with custody issues of any kind whether it be a mother fighting for sole custody, a father trying to take custody from a mother, custody modification needs, or something else we can help. Call Right Lawyers at (702) 914-0400 to get help with your custody case in Nevada. We can help you win your child custody case.