Legal Custody and Physical Custody
Negotiations Can Be the Toughest

Legal custody is what dictates the rights to information and decision making concerning your child’s education, religion, health, and financial well being. More often than not, when two people separate or divorce, legal custody is joint. In fact, in the absence of a court order, parents automatically have joint legal custody of their children when they separate, regardless of their marital status.

Physical custody is the label given based upon the time your child(ren) spend with each of their parents. Joint physical custody was recently defined by the Nevada Supreme Court as requiring a minimum timeshare of at least 40%, or at least 146 days/nights per year. This is an annual average and so it doesn’t need to be the same every week. Sometimes parents share children with some geographical distance between them. In those instances, it isn’t uncommon for one parent to enjoy the child(ren) during their substantial weekend and break time and the other parent to exercise the majority of the child(ren)’s school time. If done creatively, this arrangement can sometimes still equate to a “joint physical custody” arrangement.

If one parent has the child(ren) more than 60% of the overnights in a year then that parent has “primary physical custody”. The other parent typically then has “reasonable rights of visitation” which must be set forth with particularity unless there is a specific reason why that isn’t possible or in the child(ren)’s best interests.

Child custody can be a very complicated and fact-specific matter. It is best to get legal advice and representation whenever appropriate rather than trying to navigate this area yourself. Please contact us today for competent, ethical, and passionate representation.

initial filing dropbox texting collections attempts percent client reviews hours worked client legal custody contact happy get tip Attorneys $ father physical custody number Best Divorce and Family Law Specialst for You and county in court lawyers associate 10 9 8

CUSTODY OF CHILDREN

NRS 125C.001  State policy.  The Legislature declares that it is the policy of this State:
1.  To ensure that minor children have frequent associations and a continuing relationship with both parents after the parents have ended their relationship, become separated or dissolved their marriage;
2.  To encourage such parents to share the rights and responsibilities of child rearing; and
3.  To establish that such parents have an equivalent duty to provide their minor children with necessary maintenance, health care, education and financial support. As used in this subsection, “equivalent” must not be construed to mean that both parents are responsible for providing the same amount of financial support to their children.

NRS 125C.0015  Parents have joint custody until otherwise ordered by court.
1.  The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.
2.  If a court has not made a determination regarding the custody of a child, each parent has joint legal custody and joint physical custody of the child until otherwise ordered by a court of competent jurisdiction.

NRS 125C.002  Joint legal custody
1.  When a court is making a determination regarding the legal custody of a child, there is a presumption, affecting the burden of proof, that joint legal custody would be in the best interest of a minor child if:
(a) The parents have agreed to an award of joint legal custody or so agree in open court at a hearing for the purpose of determining the legal custody of the minor child; or
(b) A parent has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child.
2.  The court may award joint legal custody without awarding joint physical custody.

NRS 125C.0025  Joint physical custody.
1.  When a court is making a determination regarding the physical custody of a child, there is a preference that joint physical custody would be in the best interest of a minor child if:
(a) The parents have agreed to an award of joint physical custody or so agree in open court at a hearing for the purpose of determining the physical custody of the minor child; or
(b) A parent has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child.
2.  For assistance in determining whether an award of joint physical custody is appropriate, the court may direct that an investigation be conducted.

NRS 125C.003  Best interests of child: Primary physical custody; presumptions; child born out of wedlock.
1.  A court may award primary physical custody to a parent if the court determines that joint physical custody is not in the best interest of a child. An award of joint physical custody is presumed not to be in the best interest of the child if:
(a) The court determines by substantial evidence that a parent is unable to adequately care for a minor child for at least 146 days of the year;
(b) A child is born out of wedlock and the provisions of subsection 2 are applicable; or
(c) Except as otherwise provided in subsection 6 of NRS 125C.0035 or NRS 125C.210, there has been a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that a parent has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child. The presumption created by this paragraph is a rebuttable presumption.
2.  A court may award primary physical custody of a child born out of wedlock to:
(a) The mother of the child if:
(1) The mother has not married the father of the child;
(2) A judgment or order of a court, or a judgment or order entered pursuant to an expedited process, determining the paternity of the child has not been entered; and
(3) The father of the child:
(I) Is not subject to any presumption of paternity under NRS 126.051;
(II) Has never acknowledged paternity pursuant to NRS 126.053; or
(III) Has had actual knowledge of his paternity but has abandoned the child.
(b) The father of the child if:
(1) The mother has abandoned the child; and
(2) The father has provided sole care and custody of the child in her absence.
3.  As used in this section:
(a) “Abandoned” means that a mother or father has:
(1) Failed, for a continuous period of not less than 6 months, to provide substantial personal and economic support to the child; or
(2) Knowingly declined, for a continuous period of not less than 6 months, to have any meaningful relationship with the child.
(b) “Expedited process” has the meaning ascribed to it in NRS 126.161.

NRS 125C.0035  Best interests of child: Joint physical custody; preferences; presumptions when court determines parent or person seeking custody is perpetrator of domestic violence or has committed act of abduction against child or any other child.
1.  In any action for determining physical custody of a minor child, the sole consideration of the court is the best interest of the child. If it appears to the court that joint physical custody would be in the best interest of the child, the court may grant physical custody to the parties jointly.
2.  Preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child.
3.  The court shall award physical custody in the following order of preference unless in a particular case the best interest of the child requires otherwise:
(a) To both parents jointly pursuant to NRS 125C.0025 or to either parent pursuant to NRS 125C.003. If the court does not enter an order awarding joint physical custody of a child after either parent has applied for joint physical custody, the court shall state in its decision the reason for its denial of the parent’s application.
(b) To a person or persons in whose home the child has been living and where the child has had a wholesome and stable environment.
(c) 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.
(d) To any other person or persons whom the court finds suitable and able to provide proper care and guidance for the child.
4.  In determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things:
(a) 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.
(b) Any nomination of a guardian for the child by a parent.
(c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.
(d) The level of conflict between the parents.
(e) The ability of the parents to cooperate to meet the needs of the child.
(f) The mental and physical health of the parents.
(g) The physical, developmental and emotional needs of the child.
(h) The nature of the relationship of the child with each parent.
(i) The ability of the child to maintain a relationship with any sibling.
(j) Any history of parental abuse or neglect of the child or a sibling of the child.
(k) Whether either parent or any other person seeking physical 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.
(l) Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.
5.  Except as otherwise provided in subsection 6 or NRS 125C.210, a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking physical custody has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint physical custody of the child by the perpetrator of the domestic violence is not in the best interest of the child. Upon making such a determination, the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child.
6.  If after an evidentiary hearing held pursuant to subsection 5 the court determines that each party has engaged in acts of domestic violence, it shall, if possible, then determine which person was the primary physical aggressor. In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider:
(a) All prior acts of domestic violence involving either party;
(b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence;
(c) The likelihood of future injury;
(d) Whether, during the prior acts, one of the parties acted in self-defense; and
(e) Any other factors which the court deems relevant to the determination.
Ê In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 5 applies to both parties. If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 5 applies only to the party determined by the court to be the primary physical aggressor.
7.  A determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child creates a rebuttable presumption that sole or joint physical custody or unsupervised visitation of the child by the perpetrator of the abduction is not in the best interest of the child. If the parent or other person seeking physical custody does not rebut the presumption, the court shall not enter an order for sole or joint physical custody or unsupervised visitation of the child by the perpetrator and the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of abduction occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other person from whom the child was abducted.
8.  For the purposes of subsection 7, any of the following acts constitute conclusive evidence that an act of abduction occurred:
(a) A conviction of the defendant of any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct;
(b) A plea of guilty or nolo contendere by the defendant to any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct; or
(c) An admission by the defendant to the court of the facts contained in the charging document alleging a violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct
9.  If, after a court enters a final order concerning physical custody of the child, a magistrate determines there is probable cause to believe that an act of abduction has been committed against the child or any other child and that a person who has been awarded sole or joint physical custody or unsupervised visitation of the child has committed the act, the court shall, upon a motion to modify the order concerning physical custody, reconsider the previous order concerning physical custody pursuant to subsections 7 and 8.
10.  As used in this section:
(a) “Abduction” means the commission of an act described in NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.
(b) “Domestic violence” means the commission of any act described in NRS 33.018.

Charities We Support

Nevada Youth Empowerment Project (NYEP) – http://nyep.org

Truckee Meadows Housing Solutions (TMHS)https:// truckeemeadowshousingsolutions .org/

Nevada Humane Societyhttps://nevadahumanesociety. org/

Good Shepherd Clothing Closethttp://www.gsccreno.org/

Res-quehttps://res-que.rescuegroups. org/

Lexie’s Gifthttps://www.lexiesgift.com/

Solace Treehttp://www.solacetree.org/