CHILD CUSTODY IN NEVADA
Nevada law provides for two types of child custody: (1) Legal Custody and (2) Physical Custody. These aspects of custody work in tandem and describe a parent’s legal duties toward their children and the other parent. But because they are separate legal concepts, and because they offer different benefits and obligations to parents, they are worthy of discussing in some detail.
Legal Custody is the legal right of a parent to participate in the major life decisions of the child. Parents have a fundamental constitutional right to have access to, and to make decisions for, their children. Joint Legal Custody is “presumed” to be in the child’s best interest. A legal presumption acts as a “default” result that court will adopt unless a party “rebuts” it with “clear and convincing evidence.” Clear and convincing evidence is the highest standard of proof in civil lawsuits, and means a party must prove that it is substantially more likely than not that their version of the facts is true. Unless one parent can prove the other is unfit, meaning they are incapable of adequately participating in decisions for their child, both parents will end up with joint legal custody.
Joint legal custody entails the following:
Neither parent shall do anything which shall estrange the children from the other parent or impair the natural development of the children’s love and respect for each of the parents, or disparage the other parent or undermine the parental authority or discipline of the other’s household. Additionally, each parent shall instruct their respective family and friends that no disparaging remarks are to be made regarding the other parent in the presence of the children.
Neither parent shall use contact with the children a means of obtaining information about the other parent. The parents shall consult and cooperate with each other in substantial questions relating to religious upbringing, educational programs, significant changes in social environment, and health care of the children.
The parents shall have access to medical and school records pertaining to the children and shall jointly consult, when possible, with any and all professionals involved with the children. All schools, health care providers, day care providers, and counselors shall be, when possible, selected by the parties jointly.
Each parent shall be empowered to obtain emergency health care for the children without the consent of the other parent.
Each parent shall notify the other parent as soon as reasonably possible of any illness requiring medical attention, or any emergency involving the children. Each parent shall provide the other parent, upon receipt, information concerning the well-being of the children, included but not limited to, copies of report cards; school meeting notices; vacation schedules; class programs; requests for conferences; results of standardized or diagnostic tests; notice of activities involving the children; samples of school work; order forms for school pictures; and all communications from health care providers. The parents shall also exchange the names, addresses and telephone numbers of all schools, health care providers, regular day care providers, and counselors who have contact with their children.
Each parent shall provide the other parent, upon receipt, information concerning school, athletic, church and social events in which the children participate. Both parents may participate in activities for the children, such as open house, attendance at athletic events, etc.
Each parent shall provide the other parent with the address and telephone number at which the minor children resides, and shall provide the other parent within five (5) days prior to any change of address and provide the telephone number as soon as it is assigned.
Each parent shall be entitled to reasonable telephone communication with the children. Each parent is restrained from unreasonably interfering with the children’s right to privacy during such telephone conversations.
Typically, a parent can gain “sole legal custody” only in cases where the other parent is proven to be an “unfit parent,” an immediate threat to the health or safety of a child, or completely unavailable or unwilling to care for the child. In fact, the Family Courts in Nevada are becoming increasingly intolerant of parents that come to court demanding that they receive sole legal custody without proof that the other parent is a danger to the children. Instead, the courts encourage parents to be reasonable and try to work together as joint legal custodians. As a result, the vast majority of cases end up with the parents receiving joint legal custody.
Physical custody is, at its core, a “parenting plan.” This plan takes into consideration the practical realities faced by the parents in how and when they can care for their child. Accommodations are made for work schedules, but one of the primary considerations a court will make is who has been the primary caregiver for the child. The courts believe that the stability of the child’s circumstances is of paramount importance to the child’s development, so the court will do all it can to try to maintain that arrangement. There is a natural tendency to assume that a child is best cared for by both parents equally, but this does not become the same “presumption” that supports joint legal custody. Instead, the court will look at a host of factors in determining what custodial arrangement is best. It starts with the factors set forth in NRS 125.480, and includes essentially every important aspect of the child’s life.
Although attorneys would like to be able to say that the interpretations of NRS 125.480 are predictable, in truth, that would be a misleading statement. Each judge interprets the “preference” language of NRS 125.480(3) differently. Some interpret joint physical custody to be nearly a “legal presumption” and others interpret it as a loose guideline only if the parties agree. In practice, the general rule is that, if the parties cannot agree upon joint physical custody, the court will make a custodial determination based upon the factors laid out in NRS 125.480(4). Those factors are:
The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her custody.
Any nomination by a parent of a guardian for the child.
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.
Whether there have been any instances of domestic violence or parental abduction.
These factors are not the only things the court may consider but are merely the starting point for the judge, and these are the factors parents will want to consider first. Attorneys often spend an inordinate amount of time focusing on these factors in their arguments for custody. If the judge decides that the factors, as a whole, tend to lean toward primary physical custody on one parent, they base their decision on those factors that support it. If they don’t believe the factors as a whole weigh in either party’s favor, they will most likely award joint physical custody to both parents.
Nevada law provides, however, that the “label” of joint or primary physical custody is not what controls—it’s the time share arrangement that the parties actually exercise that makes all the difference.
If the court creates a timeshare arrangement where each parent has between 40% and 60% of their time with the child, that arrangement is joint physical custody. Under these arrangements, visitation is not addressed directly, except for holiday visitation. The parties are getting their visitation as a function of their parenting time. There are important legal considerations for joint custodial parents, some of which are addressed in a blog post discussing the impact of a recent Nevada Supreme Court case decision.
If either parent has less than 40% of the time with the child, the other parent will be deemed to have primary physical custody, and the other parent will get various amounts of “visitation”— again, based upon the practical ability of that other parent to take on that time. The typical non-custodial parent’s visitation time is every other weekend and one evening during the off-week. But visitation schedules are necessarily flexible to accommodate a person’s availability to be with their children.
Importantly, if the parties change their routine such that they voluntarily change the parenting time, Nevada law says that their adopted schedule—called the “de factoarrangement”— should become the order of the court upon the request of one of the parties. For example, if the parties were awarded joint physical custody in their decree (say with equal time to each parent) but then, due to work schedules or some other reason, the parents voluntarily change it so that one parent was only receiving two days a week with the children, then, by definition, the other parent is getting more than 60% of the time. That parent could then go into court and ask that the court merely “confirm” the de facto arrangement that the parents had themselves adopted. The court will very likely agree, and adopt the de facto arrangement as the new order of the court. Parents should be very aware of how drastically a small change in parenting time can affect everything else, including child support.
After that, the court will establish a holiday schedule based upon the needs and desires of the parents and children. Holiday schedules are “overlaid” on the ordinary parenting schedule and are considered overriding exceptions to the daily plan. There are many schools of thought on how holiday schedules should be structured, but the courts are increasingly adopting what is becoming a “standard” schedule.
Once child custody is determined, the court then moves on to calculating child support. For more on calculating child support, visit our blog article.
Call Nevada Family Law Group at 702-910-4300 if you have any questions about your parental rights.