Every custody decision needs to address two components: who will care for the child daily, and who will have the final say when it comes to major decisions that affect the child.
Physical custody refers to a parent’s time with the child and where the child will live. Legal custody provides the parent with the ability to have a say in the significant aspects of the child’s life, like medical, educational, or religious issues.
In both aspects of custody, parents can either share (joint custody) or split responsibility (sole custody). If you share legal custody, it means that (even if you don’t like each other) you’ll need to discuss and agree on all significant issues affecting your child. Courts favor parents having rights and responsibilities for their children, so joint legal custody is standard in many states.
Joint physical custody impacts the child in a more significant manner than legal custody because it often requires the child to split time between each home. As children get older, bouncing from each residence may be burdensome, so courts are more hesitant to go that route. If the court grants only one parent physical custody (custodial parent), the child will live primarily with one parent and will have scheduled visitation (parenting time) with the other.
There’s a common misconception that the court typically grants custody to the mother, and the father will only see the child on alternating weekends. But, the definition of a family has changed throughout the past decade, so most states, including Nevada, make it clear that the gender of a parent or child doesn’t impact the final custody decision.
At the beginning of every custody case in Nevada, the law presumes that it’s in the child’s best interest for the parents to share physical and legal custody and if you don’t agree, you’ll need to convince the judge otherwise.
The court will grant joint custody in the following situations:
On the other hand, judges will not grant joint custody if:
Perhaps the most significant concern in every custody case is what’s best for the child, which is why nearly every state follows the standard. In Nevada, judges must evaluate what’s best by using a set of factors called “best interest factors,” which include:
Domestic violence is a severe epidemic in today’s families, so courts take it very seriously when children are involved. In Nevada, if the court finds that a parent committed domestic violence against the other, it creates an automatic presumption that joint custody isn’t in the child’s best interest. While the accused parent may overcome this assumption, it will be difficult.
It’s always beneficial if parents create their custody and visitation agreement together. Parents who agree can present a joint parenting plan, which outlines legal and physical custody, as well as visitation schedules, for the court.
If you can’t agree, the court may order you to attend mediation, which is a process guided by a neutral third-party. The goal of mediation is to provide the parents with a confidential and structured environment to have an open discussion about custody. The process is entirely voluntary, so if you can’t agree, the court doesn’t require you to sign anything.
If mediation fails, the judge may ask a professional to assess each parents’ fitness and report back after the evaluation. Therapists, counselors, or sometimes court investigators, will meet with each parent and then write a report for the judge to review.
Some cases require more time of the court, so the judge will schedule an evidentiary hearing, which is slightly less formal than an official custody trial. During the hearing, the judge will listen to testimony, evaluate evidence, and eventually decide what the best custody arrangement is for the family using the above best interest factors and joint custody standards.
It would be hypocritical for the court to emphasize how important it is for both parents to have frequent, meaningful, and continuing contact with their children and then fail to provide a schedule to make sure it happens. If the court grants one parent primary physical custody, the judge will develop a proper visitation schedule for the child and noncustodial parent.
Visitation (parenting time) can be unsupervised, meaning the noncustodial parent will pick-up the child for the weekend, mid-week, or vacation parenting time without restrictions.
But in cases where there’s a history of abuse, neglect, or absence, the court is hesitant to allow the parent to have free access to the child, so visitation will take place at a court-approved public location with a supervisor present.
Children need stability, but the court understands that most custody agreements need to be fluid to keep up with the changes that often occur with growing children. Any parent who wishes to change an existing order must demonstrate that there’s a good reason for the request and that a modification will serve the child’s best interests.