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Child Custody Quick Guide: Legal vs. Physical Custody

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This is a quick guide to the current state of child custody in Southern Nevada. Nevada has two types of child custody which are Legal Custody and Physical Custody.

Legal Standard and Presumption

The legal standard used by the Court to determine custody is what is in the best interest of the child. In determining the best interest of the child, the Court considers:

  • (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; and
  • (l) Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.

The Southern Nevada Courts tend to focus more on parents allowing frequent association with the other parent, the wishes of the child who is of sufficient age and whether there is any domestic violence present. However, more recently, the Eighth District Courts have been focusing on parents who do not return the child after their allotted timeshare as possible acts of abduction. The Court is not favorable to the parent who does so. If you are contemplating withholding your child from the other parent, be certain to have a reason which affects the child’s health or safety and be prepared to prove it. Remember, Courts have the discretion to not only award custody, but to change custody based upon a parent willfully interfering with the time the child spends with the other parent. So, it is possible that you may have primary physical custody and the Court may award the other parent primary physical custody based upon you withholding the child unnecessarily.

Also, there is no preference of one parent over the other. Both parents have equal rights and are presumed to be fit for joint Legal and Physical custody with certain exceptions. The days of mothers getting preference over fathers in awarding custody and visitation are long gone in Nevada and the Courts are very proactive in ensuring both parents have as much input and get as much time as possible with the child. The Courts have done away with preferences because of the presumption that having both parents in the child’s life as much as possible is in the best interest of the child.

Legal Custody

Legal Custody entails the decisions regarding school, health care, social environment, religious, and other important information pertaining to the children. Legal custody can be divided into sole legal custody and the default in Nevada which is joint legal custody. It is rare for a court to award a party sole legal custody.
This usually happens in the following limited circumstances:

  • (1) if the other party does not know the children;
  • (2) if the other party has serious mental problems that prevent them from making decisions for the children;
  • (3) if the other party is a serious felon such as a murderer, rapist, child molester, etc.
  • (4) if the other party does not want legal custody rights; or
  • (5) if the other party is an alcoholic or serious abuser of illegal or prescription drugs. Otherwise, both parties will be awarded joint legal custody which means they both have input in the decision making for the children and can obtain medical, school related and other information from the sources.

Physical Custody

Physical custody is usually the main issue of contention for parents. Physical custody entails where the children reside and determines how child support will be calculated. Physical custody can be divided into sole, primary and joint custody. The Courts rarely award sole physical custody unless very limited circumstances are present which are mentioned above in the Legal Custody section.

Primary Custody

Primary custody exists when the child resides with one parent more than sixty percent (60%) of the time. If a parent has primary custody, they may have a less complicated time relocating with the child outside of Nevada, have child support calculated without regard to the their income and claim the child as an income tax exemption each year.

Joint Custody

In a joint physical custody case, the child can reside with each parent from forty percent (40%) to sixty percent (60%) of the time.

The advantages of joint physical custody are:

  • (1) nearly equal timeshares for both parties;
  • (2) it might deter and prevent one party from relocating with the children outside of Nevada;
  • (3) child support is determined based on both parties’ respective incomes, not just one party;
  • (4) parties usually alternate or each take one or more children as income tax exemptions; and
  • (5) both parties are in an equal position to make decisions pertaining to the children.

The disadvantages of joint physical custody are that relocation out of the State of Nevada by one parent is very difficult to achieve in Court and it is actually more expensive for a parent who has a much higher income compared with the other parent, i.e. that parent has half the time, the same basic expenses for the minor child as the other parent, and might need to pay the same amount of child support in a joint physical custody arrangement as he or she would if the other parent had primary physical custody.

Conclusion

Overall, the focus of the Courts is to determine what is best for the child and not what is convenient or best for the parents. As such, there are a few things to remember. The Courts are not going to deem a person a bad parent simply because they were a cheating or a bad spouse to you. When going through this process, always gear your actions towards reasonable co-parenting because it is very easy to be labeled as controlling when you make demands or dictate what should happen while the child is with the other parent. Be mindful to not be determined as a parent who is more concerned with how much money you will be giving or receiving, as the Courts are do take that into consideration when determining custody. Lastly, remember that all cases are different and you will need to contact an attorney with the specific facts of your case.

Patrice Stephenson-Johnson, Attorney