Rivero v. Rivero 125 Nev. 410 (2009) is a landmark case that explained what constitutes joint physical custody and primary physical custody. I previously represented Ms. Rivero and I knew that the underlying custody orders said she would have the minor child five days a week with Dad having the minor child two days per week. The parties were calling this joint physical custody, even though Mom had the children for the majority of the time.
Judge Miley, who was hearing the case at the time, did not look at the timeshare of the parties, but believed that only the designation of joint physical custody was important. Consequently, Judge Miley insisted that the parties needed to have close to a 50/50 timeshare since the custody orders indicated joint physical custody, even though the stated timeshares did not coincide with this designation.
I appealed this order because at the time there was no “concrete” definition of primary physical custody and joint physical custody. It was my belief that Ms. Rivero’s timeshare entailed that she was the primary physical custodian, even though the words joint physical custody were indicated in the applicable order.
In Rivero, the Court defined joint physical custody as one party having up to 60% of the time with the minor child or no less than 40% of the time. Primary physical custody entailed that a party had the minor child more than 60% of the time. Per Rivero, a District Court may determine the type of custody the parties have by analyzing their respective timeshares over the course of a year. The Court can then determine whether one party had primary physical custody or whether the parties had joint physical custody. Once the Court determines the type of custodial arrangement, which is not necessarily based on what the parties called it, child support can be set. The Rivero case is important with regard to divorce, post-divorce, child custody, child support, and attorney’s fees cases.