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Custody

NOTE: Parents should NEVER discuss the case, the issues, or the proceedings with the minor children as Nevada law prohibits it and the judge may sanction a parent for violating this.

Two Types of Custody

Determining Custody

Presumption for Joint Custody

Parental Kidnapping

Two Types of Custody

1. Legal custody refers to the authority to make legal decisions and access legal records. There are two kinds of legal custody:

  • Joint (both parties are entitled to access school and medical records, attend child’s events/activities, and make decisions
  • Sole (one parent is responsible for making all decisions regarding the child
  • The court usually does not grant sole legal custody unless the requesting party can show that it is in the child’s best interests

2. Physical custody refers to who the child physically lives with and there are three kinds of physical custody:

  • Joint custody means the parties split time with the child and it can be 50/50 or 40/60 (it does not have to be an even time split)
  •  Primary custody means that the child lives with one party 61% or more time but the other parent has a set visitation schedule.
  • Sole custody means that the child lives with one parent and visitation with the other parent is at the discretion of the custodial parent. (This does NOT terminate parental rights.)
  • The party requesting sole custody must show why the other party should have limited or no contact with the child.
  • The requesting party may request supervised visitation, which can be supervised by a family member or community organization, like Donna’s House at Family Court.

Determining Custody

In determining child custody, courts in Nevada are guided by a principle called “the best interests of the child,” which means that the court’s sole consideration is what it believes is best for the child. In a custody hearing, the court can consider several factors to determine what is in “best interest of the child.” The court may consider:

  • The wishes of the child if he/she is “of sufficient age and capacity to form an intelligent preference as to his or her custody.” Nevada does not have a specific age at which a child can choose which parent to live with but if the child is mature enough and can state a logical reason for their choice, the court will consider the child’s wishes.
  • Any nomination by a parent or guardian.
  • Which parent is more likely to allow the child to frequently see/contact and have a relationship with the other 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 to 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.

Presumption for Joint Custody

Nevada has a presumption in favor of joint custody when parents were married but where not married, the preference is for joint custody.

When the parents were married, the “presumption” means that the court will assume that it is best for the child for the parents to have joint custody. This presumption can be overcome with evidence showing otherwise.

When a court determines by clear and convincing evidence after an evidentiary hearing that one parent committed domestic violence against the child, the other parent, or another person living with the child OR one parent has abducted the child or another child, the court will presume that sole or joint custody by the perpetrator is NOT in the child’s best interest

The parent who has been convicted of domestic violence can overcome the court’s assumption that they should not have joint or sole custody by proving that it is in the child’s best interest for him/her to have joint or sole custody.

Parental Kidnapping

A law known as the “1980 Hague Abduction Convention” was passed to prevent parental kidnapping and applies when:

  • The child is under 16.
  • A custody order was issued and the child was a resident of the state where the custody order was issued.
  • The petitioning parent was given the right to custody.
  • The other parent wrongfully removed/retained the child from the child’s home country.
  • The petitioning parent was exercising the right to custody or would have exercised the right to custody if not for the other parent’s wrongful removal/retention.
  • This action can be brought in either federal or state court.
  • Participating countries can be found on the US Department of State’s website.