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What is Physical Custody, and do Fathers Ever Get It?*

After filing a complaint for custody or even discussing the terms of a possible custody decree, the terms legal custody and physical custody come up almost immediately.  Many of our clients are surprised to learn that the days of the mother automatically getting custody are long gone.  Fathers often get Joint Physical Custody or in some instances, even Primary.  This blog post discusses physical custody and what rights and responsibilities come along with this type of custody.

So, What is Physical Custody?

Nevada law has defined physical custody as the time that the child physically spends in the care of a parent.  Rivero v. Rivero, 216 P.3d 213, 125 Nev. 410 (Nev. 2009).  During this time, the child resides with the parent and that parent provides supervision for the child and makes the day-to-day decisions regarding the child.  Id.  Parents can share joint physical custody, or one parent may have primary physical custody while the other parent may have visitation rights.

Whether a parent has primary physical custody or the parents share joint physical custody is legally significant for several reasons, but the two most common are:

  • It determines the standard the Court applies if a parent seeks to modify the physical custody arrangement, and;
  • It determines how child support is calculated (see our prior blog post “How is Child Support Determined in Nevada?”).

How does the Court Determine Physical Custody?

In determining custody of a minor child, the sole consideration of the court is the best interest of the child.  Rivero v. Rivero, 216 P.3d 213, 125 Nev. 410 (Nev. 2009).  The State of Nevada, prefers that parents are awarded Joint Physical Custody regardless of sex or marital status.  NRS 125C.0025.

The Nevada legislature has also provided attorneys and parents with several factors to consider when looking at the best interest of the child.  NRS 125C.0035.  Some of the things that the Court will look at are:

  • The wishes of the child if the child is old enough;
  • The level of conflict between the parents;
  • The mental and physical health of the parents;
  • Whether the child has siblings that live with one of the parents;
  • Whether one of the parents has committed domestic violence against the child or someone living with the child;
  • Plus many more

Ultimately, the Court prefers that the parents determine what is best for their child and will encourage resolution.  However, if the parents can’t agree, then the Court will make the determination at trial.

How do I tell if I have Primary or Joint Physical Custody?

If there are no prior Court orders regarding custody, parents share joint custody until otherwise ordered by the Court, regardless if the parents are married or not.  NRS 125C.0015.  However, once either parent seeks Court intervention, the Court will look at the factors discussed above, including what the schedule the parents have been following.

Many parents are surprised when they learn, that Joint Physical Custody does not mean an exact 50/50 split of time.  Joint Physical Custody is defined as at least 40% of the time, or 146 days per year. The Court allows some flexibility in the time share to account for the variations in a child’s schedule.  In recent years, the Court has shown some indication that it will consider a time share of less than 40% as Joint Physical Custody.  However, if a parent is seeking Joint Physical Custody, having less than 146 days is not recommended

The outcome of a custody dispute in a Las Vegas Family Court is a complicated subject.  There are many factors and arguments that might be made in your case.  If you would like to set up a consultation with an experienced Las Vegas Family Lawyer to determine your next step, call Doyle Law Group at 702.706.3323, or fill out the contact sheet on this page and we will get back to you as soon as possible.

*This blog post is intended to give a basic overview of physical custody in Nevada and not intended to constitute legal advice or form an attorney client relationship with our firm.  Due to the complicated nature of custody awards, it is advised that you consult a legal professional.