When it comes to child custody, Nevada has joined a growing number of states that are trying to reduce the conflict that often accompanies custody cases. To that end, when parents are separated or getting divorced, Nevada courts try to ensure that the minor children have frequent association and a continuing relationship with both parents. (Nevada Revised Statutes § 125C.001.) In any custody case, the guiding principle will always be that the ultimate outcome must be in the best interests of the child.
There are various custody options in Nevada, which revolve around the concepts of “legal custody” and “physical custody.” Legal custody relates to making major decisions regarding the child’s upbringing, such as educational choices, religious training, and non-emergency medical care. Physical custody refers to where the child is going to live.
If parents have “joint legal custody,” they equally participate in making the major decisions regarding a child’s welfare. In addressing joint legal custody, Nevada statutes presume that this status would be in the child’s best interest if the parents agree to it, or a parent has demonstrated an attempt to establish a meaningful relationship with the child.
It’s important to note that this presumption would still be valid if a parent hasn’t been able to have a meaningful relationship with the child because the other parent prevented it. (Nevada Revised Statutes § 125C.002.)
Although it’s not the norm, there are situations where the court may determine that joint legal custody isn’t in the child’s best interest. In that case, only one of the parents gets to make the major decisions concerning the child. You might see this where one parent’s decision-making ability is compromised by drug or alcohol abuse.
Nevada law also has a preference for “joint physical custody.” In this scenario, the child lives with each parent at least 40% of the year. The same factors that apply to joint legal custody apply here, in terms of parental agreement or establishing a meaningful relationship with the child. The court can also conduct an investigation to determine whether joint physical custody is appropriate. (Nevada Revised Statutes § 125C.0025.)
If the court finds that a parent can’t care for a child 40% of the time, or that one of the parents has been guilty of domestic violence, it will presume that joint physical custody isn’t in the child’s best interest, and will grant the other parent primary physical custody. (Nevada Revised Statutes § 125C.003.) This parent is often referred to as the “custodial” parent. The “non-custodial” parent will usually have visitation rights with the child, depending on the circumstances.
Sole custody, where one parent has exclusive control of every aspect of the child’s life, is unusual. If you do see it, it’s likely to be where a court determines that the other parent is unfit. Generally speaking, an “unfit parent” is one who, by reason of that parent’s character or conduct, fails to provide a child with proper care, guidance, and support. (Nevada Revised Statutes §128.018.)
Another important point is that the court can’t give preference to either parent for the sole reason that the parent is the mother or the father of the child. (Nevada Revised Statutes § 125C.0035 (2).) This is meant to dispel past assumptions that a child would be better off with its mother.
Depending on a particular county's population, the court may require the parents to engage in mediation if they can't resolve custody or visitation issues. (Nevada Revised Statutes §§ 3.475 and 3.500.)
Be aware that a parent being in the military can impact custody.
There isn’t a specific formula for deciding custody. Rather, parents can create their own custody agreements, or a judge can craft a custody arrangement when parents can’t reach a decision on their own.
To assist judges in determining what custody arrangement is in the best interest of the child, Nevada law provides a number of factors for a judge to consider, including:
During the period that a parent doesn’t have physical custody, that parent is entitled to visitation (parenting time) with the child. This is in keeping with the concept of maximizing contact between the child and both parents. A court order regarding visitation must specify that Nevada (or whatever state the child primarily resides in) is the child’s “habitual residence”. This is likely meant to protect against situations where a conflict arises as to which state has custody jurisdiction.
Custody and visitation orders are, at their core, “parenting plans”. Among other things, Nevada parenting plans address the logistics of how a non-custodial parent will spend time with a child. There isn’t a one-size-fits-all visitation arrangement. In fact, the terms can be whatever the parents agree to, as long as it’s in the child’s best interest.
Be aware that visitation orders have to be drawn up in sufficient detail to ensure that the parents’ rights can be properly enforced. (Nevada Revised Statutes § 125C.010.) This means that the terms have to be specific enough so that they’re not susceptible to different interpretations. For example, you’d have to avoid using terms like “reasonable” to describe a particular visitation right, because people’s opinions of what’s reasonable can differ. The bottom line: spell everything out. The more specificity the better if you want to avoid problems down the road.
There may be situations where a parent shouldn’t be allowed to spend time alone with a child. You’d see this in cases where a parent has been guilty of child abuse, for example, or if there are anger control issues or untreated substance abuse. In these cases, the parenting plan can provide for supervised visits. These are often conducted in a state-approved facility, staffed with trained personnel.
You should note that wrongfully withholding visitation from a parent can have serious consequences.
Possibly. As seen in the best interests of the child guidelines above, a child’s wishes is one of the factors a court can consider. The caveat, of course, is that the child must be of sufficient age and capacity to form an intelligent preference. Notice that the law doesn’t set a particular age. As a general rule, the older the child the more weight a judge will give to that child’s preferences. But in the end, it boils down to the child’s level of maturity.
In one Nevada case, a lower court’s decision was reversed when the higher court discovered that the judge ignored a 13-year-old’s and 16-year-old’s custodial wishes. The higher court found that the teens were sufficiently mature and capable of voicing a well-reasoned preference.
A judge will also want to be sure that a child’s expressed preference isn’t based on a parent’s undue influence. So a court is likely to discount a child’s wishes if it determines that one parent was bad-mouthing the other in front of the child, or attempted to bribe the child, such as with promises of gifts.
In terms of the mechanics of a child expressing an opinion, courts try to avoid having children testify in open court. Being placed in that environment can be frightening and stressful. Rather, a judge is more apt to speak with the child in chambers (the judge’s office). In other cases, a judge may choose to appoint a trained child professional to meet with the children to learn and convey their wishes.
Sometimes a question arises regarding what age can a child refuse custody. In Nevada, the age of majority (when a child is considered an adult) is 18. (Nevada Revised Statutes § 129.010.) A child younger than that is considered a minor, and so cannot legally reject a custody order.
However, in some circumstances, children age 16 or older can petition the court for a “decree of emancipation”, meaning they’re no longer subject to parental control. You’ll typically find this in cases where children are married or living independently from their parents. Of course, it’s up to a judge to determine whether the child’s request is appropriate. (Nevada Revised Statutes §129.080.)
You can request that the court modify an existing custody or visitation order. You’d do this by filing a motion (written request) with the court. Remember, however, that courts place a premium on providing children with stability. So you must prove to the court that the requested modification is in the best interests of the child. (Nevada Revised Statutes § 125C.0045 (2).)
There are any number of reasons why a parent might ask for a modification. For example, perhaps the parent has to move out of state because of an employment change. Or maybe a parent has become disabled, and adhering to the current plan would pose a major hardship.
If both parents agree to the modification, it usually makes things easier. But the final decision as to whether or not to grant the request rests with the court.