Must Know Definitions of Child Custody

Child custody battles can be the most challenging piece of being a divorce lawyers. We are biological wired to fight for our children. More so than we would fight over the washer and dryer, or the vehicles.

Sadly, many of the fights are not over children. They are over ignorance of our rights, or ignorance of the definition behind child custody terms. For example, mothers come into our office willing to spends tens of thousands of dollars to fight for primary custody. Not realizing that in Nevada the difference between primary physical custody and joint physical custody might only be one extra day a week.

Before you go into a custody battle, take a moment to learn the territory. It doesn’t make much sense storming into a battle field blind folded. Here are some basic child custody terms to understand.

1. What are the different types of custody?

There are two main types of child custody: legal and physical. Legal custody refers to a parent’s role in making decisions regarding the child’s health, schooling, religion, and general well being. Physical custody refers to where the child physically lives.

Additionally, for both legal and physical custody there are two sub-types: primary and joint custody. Joint custody means that parents share an equal role in decision making while primary means that one parent retains full responsibility. It is possible for parents to different levels of custody depending on the main type.  Parent’s may share joint legal custody of the children while one parent has primary physical custody.

2.  What is the difference between joint physical custody and primary physical custody?

Physical custody is the main battleground for parents.   This is who the children will spend there time.  Whether you chose to file for divorce or your spouse chose for you,  the desire to ask for primary physical custody of the children is strong.  Many times clients don’t even know why they, or their attorney, requested primary physical custody in the divorce papers.   Asking for primary custody just seems like the natural thing to ask for.     But asking for primary custody is not the same as asking for “sole” physical custody.  Primary custody might be 5 days a week with children where joint physical custody is 4 days a week.   The difference is only one more day/night a week with the children.

To prevail in a request for primary custody the requesting parent must show the judge primary physical custody is in the “best interest” of the child.    This is not always an easy task, and often requires loads of evidence.  The burden to prove that primary custody is the best for the child is on you (and your divorce attorney).

3. What does it mean when the court asks what is in the “best interest” of the child?

The “best interest” argument is primarily used when one parent is seeking primary custody. Since the State legislature of Nevada is organized to default to joint primary custody, the parent seeking primary custody must prove why this option will be better for the child.

The court considers the following criteria when deciding these requests:
• The wishes of the children, if they are of sufficient age
• Which parent is more likely to maintain a relationship with the other
• The level of conflict between the parents
• The ability of the parents to cooperate to meet the needs of the children
• The mental and physical health of both parents
• The ability of the child to maintain a relationship with any siblings or step-siblings
• Any history of physical or mental abuse in both parents
• Whether either parent has ever engaged in an act of domestic violence

Before charging into a custody battle, take a moment to review the definitions, and lingo.  Learn what the court requires to show “best interest” for primary custody.   Think if your request is best for your child and their development.  If it is then go for it.  If it isn’t then talk with your divorce attorney about alternative strategies.