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There are two (2) types of custody in Nevada:
Legal custody should be thought of as decision making pertaining to the welfare of child/children, and usually deals with issues involving the child’s education, religion, and health.
Pursuant to Nevada Statute, married parents have joint legal custody of their child/children. Unmarried parents do not automatically have joint legal custody; however, it is customary for the Court to grant joint legal custody to unmarried parents.
Legal custody can be modified by making an application to the Court. Rarely is it modified with the exception of extreme situations. These situations vary and are dependent on the specific facts of each case.
Physical custody refers to where the child/children will live. In addition, it determines the amount of child support and who will receive child support, as well as the Federal Tax Exemption for the child/children. Thanks to the tireless efforts of father’s rights organizations, physical custody is no longer determined based upon gender. The Clark County Courts are required to focus on the “best interest of the children” standard instead of the “Tender Years Doctrine” which presumed that children would be better off with their mother at a young age rather than with their father.
In 2009, the Nevada Supreme Court issued a ruling in Rivero v. Rivero, 124 Nev. Adv. Rep. 84, 195 P. 3d 328 (2008), which defined joint and primary physical custody. Under the holding, regardless of what the custodial arrangement is called, the Court is now required to look at the timeshare and determine the percentage of time the child/children spend with each parent.
The courts in Nevada determine custody of a child solely based on the best interest of the child. If it appears to the court that joint custody would be in the best interest of the child, the court may grant custody to the parties jointly. Preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child.
The court will determine custody in the following order of preferences unless the best interest of the child requires otherwise:
- To both parents jointly pursuant or to either parent.
- To a person or persons in whose home the child has been living and where the child has had a wholesome and stable environment.
- To any person related within the fifth degree of consanguinity to the child whom the court finds suitable and able to provide proper care and guidance for the child, regardless of whether the relative resides within this State.
- To any other person or persons whom the court finds suitable and able to provide proper care and guidance for the child.
Best Interest of the Child
In determining the best interest of the child, the court will consider the following items:
- 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 or 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.
- Any history of parental abuse or neglect of the child or a sibling of the child.
- Whether either parent or any other person seeking custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.
- Whether either parent or any other person seeking custody has committed any act of abduction against the child or any other child.
Actions should be filed where the child/children live, not necessarily in the State where a parent lives. According to the Uniform Child Custody Jurisdiction Enforcement Act, jurisdiction will be decided upon the child’s home state or, where the child has been living for more than six (6) months. Other factors include, emergency jurisdiction, whether another state has jurisdiction over the child and if the child and a parent hold significant contacts in a particular state.
Once jurisdiction has been established, jurisdiction remains in the issuing state until the state loses continuing exclusive jurisdiction. Simply put, it means that no one remains living in the issuing state. Just because a parent is permitted to relocate with a child, does not mean jurisdiction automatic transfers to the state where the child has relocated.
According to NRS 3.475, due to the number of people living in Clark County, all parents are required by Nevada law to attend a confidential mediation to attempt to resolve disputes. Mediation is a process in which the parents meet with a mediator, outside the presence of counsel, to attempt an amicable resolution of custody issues.
Our experienced attorneys can further walk you through this process once becoming a client of the firm. Do not navigate this complicated process alone – we can help. Call our office today at (702) 474-7007.