Pursuit of Primary Child Custody

Few family law issues are as important to a family as child custody concerns. A custody outcome ultimately determines the physical time each parent spends with the child and outlines the decision making authority of both parents.

Understanding the legal principles, and relevant Nevada law related to child custody will help you prepare for your child custody matter.  In addition to this article we highly recommend you review your specific situation with a child custody attorney. Every situation can be different and no article can substitute individual legal advice on pursuing primary child custody. To that end, this article will highlight the principles of Nevada child custody, explaining:

  • The Two Types of Child Custody
  • The Court’s Emphasis on a Child’s Best Interests
  • Issues Leading to Primary Custody

Legal vs. Physical

Every child custody case has two types of child custody recognized by Nevada law.  They are legal custody and physical custody, which are defined as follows:

  • Legal Custody: The responsibility to make decisions regarding the child’s wellbeing. Examples of the decisions facing a parent with legal custody include matters such as which school the child should attend, which doctor they should see and decisions concerning the child’s general welfare.
  • Physical Custody: Relates to the amount of time the child spends living with each parent. Nevada law prioritizes joint physical custody, meaning the child lives with both parents on an equal basis. If a parent has 61% or more of visitation time, said parent has what is referred to as primary custody. The parent without primary custody is referred to as the noncustodial parent.

Primary Custody vs. Joint Custody

Each type of child custody, whether legal or physical, can be labeled primary, or joint.   Primary means one parent has the authority or control.  Joint means authority or control is being shared.  Joint custody is Nevada’s preferred division of parental responsibility for both physical and legal custody.

Joint means that each parent has equal rights and responsibilities regarding their child. For joint legal custody, both parents share the decision-making responsibility when it comes to things like school choice, choosing doctors or choosing what religion the child will be taught. Joint physical custody means a child will spend roughly equal amount of time living with both parents.

Primary is when one parent is vested with control.   Primary can be used with legal custody, but is usually a determination made for physical custody.  Primary physical custody occurs when parents or the courts determine it is in a child’s best interests to spend 61% or more of visitation time with one parent. The parent who receives 39% or less of visitation time is the noncustodial parent.  Primary legal custody would mean one parent makes the legal custody decisions.

There is one more label; sole custody.  Sole custody is used in extreme situations.  This label means one parent has exclusive parenting rights and responsibilities for the child. The other parent is limited to zero legal custody rights, and custody rights are either under supervised visitation or at the custodial parent’s consent.

It is important to note that joint, primary and sole custody does not need to apply to both legal custody and physical custody. Parents may choose to share joint legal custody and choose a different method of physical custody.  For example, you may see parents with joint legal custody, and mom has primary physical custody. The common arrangement, and courts preferred arrangement, is joint legal custody, and joint physical custody.

When parents cannot come to a custody agreement, courts are called on to make final decisions. To make a determination the courts will use a number of factors to make a determination of a child’s best interests.

Custody Factors Used in Nevada Courts

Nevada prefers to put co-parents in control of the process, leaving the court out of it entirely. The reason for this is quite simple. When parents cooperate, it is more likely that an agreement will be followed and this is in the child’s best interests. After all, parents know what is best for them and their children. If parents cannot agree then the court will make a custody ruling.

In making a custody determination, Nevada relies on factors used to make a finding based on what is best for the child. Nevada’s best interests standard that ultimately affects every child custody case owes its roots to the 1994 case of Truax v. Truax. The court in the Truax case outlined several tests used to determine what is truly in a child’s best interests.

The reasoning of this landmark Nevada family law case was ultimately codified into law under NRS 125C.003 and 125C.0035. These statutes explain the custody factors used in Nevada courts, which include, but are not limited to:

  • The cooperation and/or conflict level between the parents
  • The physical and mental health of both parents
  • The developmental and emotional needs of the children
  • The strength of both child-parent relationships
  • The child’s relationship to their siblings
  • Whether the parents have a previous history of domestic abuse
  • If the child is of sufficient age and mental capacity, their wishes are also taken into account

Judges will use these factors to make their rulings on legal and physical custody. These same factors are also used to detail a visitation schedule based on the facts and needs of the children. To better understand how the “best interest” custody factors apply to your case, you may find it helpful to complete our “best interest factors” worksheet.  The worksheet was designed to help parents understand how everyday situations are viewed through the factors.

Even if parents agree to joint custody, primary custody or some other arrangement, a judge will still review the agreement to determine it meets the best interests standard based on Nevada custody laws.

Pursuit of Primary Custody

It is no secret that many Nevada mothers would prefer to receive primary physical custody for their child. Similarly, there are many fathers who would prefer to have joint custody. Sometimes the pursuit of primary physical custody is in good faith.  A parent believes the child will do better living with them four of five nights a week.

Often times the issue is over money. Because the primary custody parent receives more child support. the issue over primary physical custody is not about the child, but about income. When physical custody is shared child support is split.  With primary physical custody the child support is not split. This rule cause many couples to fight over primary physical custody when they are actually fighting over child support. For more details on child support review our child support calculator.

Both mothers and fathers in Nevada may be under the mistaken impression that Nevada family law courts tend to favor mothers. This is a long-held, but debunked myth. The Nevada family courts do not prefer mothers over fathers, and the presumption to favor mothers does not apply in Nevada. The reason more mothers have primary physical custody is because the majority of fathers choose to give them custody.

Mothers instinctively feel having primary physical custody, which is around five overnights a week, is the better arrangement. As such, mothers are surprised when the court fails to give them primary custody based on their nurturing instincts. If the matter is decided by a Nevada court, the presumption of the legal system is to favor joint legal and joint physical custody, with a nod to the best interested factors when needed.

A Nevada parent, whether male or female, has the burden of proving why primary custody is warranted. There are many reasons why this could be the case. Common examples are listed below. If you are pursuing a primary custody ruling the court will require you to submit evidence proving the issues. If the court feels you have proven these issues and they meet the best interest factors, then primary custody will be awarded.

  • Alcohol and/or Drug Abuse
  • Mental Instability
  • The Parent Lacks a Suitable Living Situation
  • Spousal or Child Abuse Is Involved
  • The Parental Relationship Is Extremely Hostile, Making Co-Parenting Impossible
  • One Parent Plans to Relocate Outside of Nevada
  • And More

Sole Custody

Nevada law operates under a legal presumption that parties will share joint custody of the children. However, if one parent is proven to be unfit, primary or sole custody can be ordered by a judge. In short, a judge will have total discretion over how the custody will be arranged, but Nevada law guides their reasoning and ultimate determination.

Sole custody is an extreme rarity, and is usually only awarded when the best interests of the child dictate that a parent should have no legal rights or visitation rights. Factors that can lead to a finding of sole legal include the following:

  • A parent has no involvement with the child
  • A parent is mentally impaired
  • A parent is a felon
  • A parent does not want any legal rights

Sole custody situations are serious. If you have additional questions or concerns about obtaining sole custody, or primary custody, contact one of our child custody lawyers to discuss your rights and a detailed legal course of action.