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Child Decides Where They Want to Live

When the Child Decides Where They Want to Live

There is no magic age in Nevada when a child gets to decide where or with whom they want to live. NRS 125C.0035 provides that factors known as best interest factors that the Court must consider when awarding physical custody. One factor in determining a child’s best interest is set forth in NRS 125C.0035 (4)(a) and is the “wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her physical custody.” To be clear, this is only one factor and not definitive of the final order on physical custody.

It is a two-prong analysis that starts with age and what sufficient age means. There is no case law or laws in Nevada that define sufficient age; it is a gray area and arguments can be made for a larger ranger. I typically will not make arguments regarding a child’s preference until the child is eleven years old.

The bigger argument is the second prong which capacity. When considering a child’s capacity, the Court may consider things like the child’s grades, activities, criminal activity, reasoning for the preference, alignment with one parent, medical issues, etc. Again, this is not a complete list and arguments can be made for additional things that go to the child’s capacity.

There are a few ways to obtain input from the child including a child interview and child testimony. EDCR 5.301 prohibits the involvement of the child in litigation. So do not have the child write a letter or appear in Court absent an Order. This type of behavior is frowned upon by the Court and may be viewed as manipulating which could impact the weight the Court gives to the Court’s preference.