Pursuing Primary Custody of Your Child
Custody battles (especially for primary custody) can be one of the most challenging and embittering parts of the divorce. There are so many misconceptions that it can be tricky to get the facts straight. Sometimes those facts can change between states too. That’s why if you are pursuing primary custody of your child it is vital to retain a divorce lawyer specializing in 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. It also outlines the decision making authority of both parents.
Understanding the legal principles and relevant Nevada law will help you prepare for your child custody battle. In addition to this article, we highly recommend you review your specific situation with a child custody attorney. Every situation can be different. No article can substitute individual legal advice on pursuing primary child custody.
Legal and physical custody differ in the eyes of the law. Most of the time when people talk about child custody, they are talking about physical custody.
Legal custody is the responsibility to make decisions about the child’s well-being. The parent with legal custody makes decisions such as which school the child should attend, which doctor they should see, and general welfare related decisions.
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, then that parent has primary custody. The parent without primary custody is the noncustodial parent.
Each type of child custody, whether legal or physical, falls into one of three categories, primary, joint, or sole. Primary means one parent has the authority or control. Joint means both parents share that responsibility. The Nevada legal system prefers both joint physical and joint 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 study. Joint physical custody means a child will spend roughly equal amounts of time living with both parents.
Child support is still normal in joint custody situations. Judges calculate child support based on the relative incomes of both parents. Meaning the parent with higher income will provide child support to the parent with the lower income.
Primary is when one parent has vested control. It typically refers to physical custody, but can also include legal 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.
A Nevada parent, whether male or female, has the burden of proving why primary custody is warranted. A divorce lawyer normally presents the case to the court on behalf of the parent. There are many reasons why this could be the case. Typical examples are listed below.
- Alcohol and/or drug abuse
- Mental instability
- A parent lacks a suitable living situation
- Spousal or child abuse
- The parental relationship is extremely hostile, making co-parenting impossible
- One parent plans to relocate outside of Nevada
If you are pursuing a primary custody ruling, the court requires you to submit evidence to back up your reasoning. Talk with your divorce lawyer about gathering strong evidence to support your case. If the court feels you have proven these issues and they meet the best interest factors, then primary custody will be awarded.
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 has zero legal custody rights. Physical custody rights may be limited to 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 standard arrangement, and courts preferred arrangement is joint legal custody, and joint physical custody.
When parents cannot come to a custody agreement, the courts make the final decisions. To make a determination the courts will use several factors to determine a child’s best interests.
Nevada law operates under a legal presumption that parties will share joint custody of the children. However, if the courts determine one parent is unfit, a judge can order primary or sole custody. In short, a judge has total discretion over how the custody will be arranged, but Nevada law guides their reasoning and ultimate determination.
Sole custody is an extreme rarity. It usually only occurs 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 custody include the following when the parent:
- has no involvement with the child
- is mentally impaired
- is a felon
- 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, then contact one of our child custody lawyers to discuss your rights and a detailed legal course of action.
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, they are more likely to follow the agreement which 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. Today, we no longer see courts arbitrarily granting a mother custody just because she is the mother. 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 the Nevada courts use, which include, but are not limited to the following:
- Cooperation and/or conflict level between the parents
- Physical and mental health of both parents
- Developmental and emotional needs of the children
- Strength of both child-parent relationships
- Child’s relationship with their siblings
- Whether the parents have a previous history of domestic abuse
- If the child is of sufficient age and mental capacity, the court takes their wishes into consideration
Judges will use these factors to make their rulings on legal and physical custody. These same factors also help determine a visitation schedule based on the facts and needs of the children. Once custody is established only then will the courts move on to calculating child support.
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. Our divorce lawyer specializing in custody cases created this worksheet to help parents understand how the courts use these factors to view everyday situations.
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.