Family Law

How do Judges Decide Child Custody in Nevada

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation and how Nevada judges decide custody cases.

Child Custody and Visitation in Nevada

If you're going through a divorce with children, you need to understand how Nevada judges make decisions about child custody and visitation. To do that, you first have to learn about some fundamental family law concepts.

One of the first things you need to know is that the State of Nevada strongly encourages both parents to be actively involved in a child’s life. The Nevada Legislature issued a statewide policy declaring that two of the state’s primary family law goals are to ensure that children have frequent and continuing relationships with each parent and to encourage parents to share the rights and responsibilities of parenting.

What Is the Difference Between Legal and Physical Custody?

If parents can’t reach a custody agreement on their own, a judge will have to intervene and issue a custody and visitation order for them. To understand Nevada’s family law processes, you first need to understand that the word “custody” is very broad and that there are several kinds of custody a judge will consider:

  • Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.
  • Legal custody is about giving a parent a voice in a child’s upbringing. A parent with legal custody will give input and help make decisions about important issues in the child’s life. For example, parents with legal custody are involved in the child’s education, extracurricular activities, religious and spiritual affairs, cultural activities, and medical care.
  • Sole custody means that one parent has full physical or legal custody. A parent with sole physical custody has the children most of the time and assumes primary responsibility for their daily care, while the other parent spends smaller amounts of visitation time with the kids. On the other hand, a parent who has sole legal custody has complete authority to manage a child’s educational, religious, spiritual, cultural, and medical needs. Awards of sole legal custody are rare and usually happen when one of the parents is abusive or neglectful or has a substance abuse problem.
  • Joint custody is shared, meaning that both parents have nearly equal rights and responsibilities in child-rearing. Nevada law favors joint custody, if possible. If a judge orders joint physical custody, the children typically spend an equivalent amount of time at each parent’s residence, according to a set schedule. If a judge orders joint legal custody, both parents get to have a voice in making important decisions about the child’s life. One of the most important things to know about joint custody is that the parents have to be willing and able to cooperate with each other or a judge will not award joint custody.

Nevada law strongly favors joint child custody. It doesn’t matter if you had children while you were married or if you were just in a serious romantic relationship—the parent and child relationship extends equally to every child and to every parent. If this is your first time trying to get a custody order, know that the judge will presume (meaning, assume) that both you and your ex have joint legal and joint physical custody of your children unless and until the court decides otherwise. Gender doesn’t matter either—the judge who hears your case can’t give either you or your ex a preference for being male or female.

What Is Visitation?

Because Nevada’s public policy so strongly favors a child having a full and healthy relationship with both parents, the law allows the parent who spends less time with the children to have visitation. Generally speaking, visitation is a court-ordered, scheduled time when a non-custodial parent is able to be with the kids physically (e.g., summer breaks or weekend visits) or, perhaps, call them on the telephone or speak through real-time video call apps like Skype or FaceTime.

Both parents are governed by the visitation schedule the judge imposes, although the parent with sole physical custody can always agree to give the non-custodial parent more visitation time. If that happens, it’s wise to document the situation by asking the court to adjust the old schedule to match the new one.

The judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol or has a history of abuse or neglect, the court will structure its custody and visitation order to make sure the kids are protected. Under these circumstances, courts will often order supervised visitation, where a to be supervised by a family member or someone else who can make sure the child is safe. Supervised visitation usually occurs at a neutral place, like a restaurant or park.

It’s rare for the court to suspend visitation completely, and that only happens in cases where visitation would pose an immediate and major threat to the child.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

Family law judges typically encourage parents to resolve their custody and visitation disputes on their own. In fact, it’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is still a stranger to you and your family. The judge doesn’t know you personally and you might be terribly dissatisfied with the decision. On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life.

If possible, if you and your ex disagree about custody and visitation, you can try child custody mediation for help in resolving the disputes. It’s also always advisable to consult with an experienced family law attorney, but if you’re self-represented, the Legal Aid Center of Southern Nevada maintains a library information that you can use to make your case.

How Do Judges Decide Custody Issues?

The most important consideration for Nevada courts is what’s best for the child. Ultimately, the court will have to issue an order reciting the law and making specific findings. In other words, the court will write out and explain its interpretation of important evidence in the case. To do so, the judge has to listen to all the evidence from each parent and then apply it to the following list of “best interest factors:”

  • the child’s wishes, if the child is old enough to form a reasonable opinion
  • whether one parent is more likely than the other to allow the child to have frequent visits and a continuing relationship with the other parent
  • how much conflict there is between the two parents
  • whether the parents can cooperate to meet the child’s needs
  • the mental and physical health of each parent
  • the child’s physical, developmental, and emotional needs
  • the nature of the child’s relationship with each parent
  • whether the child, or any of the child’s siblings, have been abused or neglected by a parent
  • whether either parent has a history of domestic violence against the child, the child’s parent, or anyone else who lives with the child
  • whether either parent has attempted to abduct or has abducted the child or any other child, and
  • any other relevant facts that help the court to understand what’s in the child’s best interests.

If you or your ex have a history of domestic violence, or in the unlikely event that one of you has tried to abduct a child, you’ll have to go through some extra steps. The court will consider testimony and evidence about whether either or both parent has engaged in domestic violence against each other or the child. The judge will then make sure the final custody and visitation order adequately protects the child against the risk of abuse, harassment, or abduction.

The court also has to decide whether joint legal or physical custody, or both, should be awarded to the parents. The judge will make a presumption (meaning, a legal assumption) that joint custody will be awarded if either of the following statements are true:

  • Both parents have agreed to joint legal or joint physical custody or have appeared in court and testified that they so agree.
  • One parent has proved that his or her efforts to co-parent were intentionally thwarted by the other parent.

Judges can appoint experts to evaluate each parent’s home and life, and the child’s life, and then make a recommendation to the judge as to whether joint legal or joint physical custody should be awarded.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify (or change) the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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