Nevada Custody Law

Physical and legal custody involved separate legal rights and control distinct factual scenarios. In determining both types of custody, the “sole consideration is the best interest of the child.” Parents are encouraged to cooperate and negotiate a custodial arrangement for their children before going to court and allowing a “stranger” to make the decision. There are no winners in contested custody litigation. It is expensive, neither party is generally satisfied and the children usually suffer.

1. Legal Custody

“Legal custody involves having basic legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing.” Sole legal custody vests these rights with one parent and while joint legal custody vests this right with both parents. Sole legal custody is extremely rare. There is a presumption in Nevada that parents will share the joint legal custody of their children. “Joint legal custody requires that the parents be able to cooperate, communicate, and compromise to act in the best interest of the child.” In joint legal custody cases, the parents must consult with each other to make major decisions regarding the child’s upbringing. Joint custody can exist regardless of the physical custody arrangement.

2. Physical Custody

Physical custody involves the time that a child physically resides with each parent. During this time, the child lives with the parent and that parent provides supervision for the child and makes the day-to-day decisions regarding the child. It is the public policy of Nevada that minor children have frequent associations and a continuing relationship with both parents and parents sharing the rights and responsibilities of child rearing.

Joint custody is generally equally, but the Nevada Supreme Court has recently defined joint custody as each parent having at least 40% of the time with the child. If a parent does not have 40%, the other parent has primary custody.

Besides the obvious, the physical custody arrangement is important for three reasons. First, it determines the standard for modifying physical custody. It is more difficult to modify a custodial arrangement when one parties has primary physical custody of a child, rather when the parties share physical custody. Second, if the parties share the joint physical custody, it is more difficult for a parent to obtain permission to move out of state with a child than it would be for a parent who has the primary physical custody. Lastly, the physical custody arrangement has a direct impact on the amount of child support awarded in most cases.

See Rivero vs. Rivero, 125 Nev. Ad. Op. 34 (August 27, 2009)

 

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