Child Custody is easily the most important aspect of any Family Law case. Every parent knows how much effort, sacrifice, and love goes into raising a child. When two parents can no longer agree on how to raise a child, the Court will insert its best judgment in place of the parents. This can often result in feelings of helplessness and frustration, especially when you realize that these orders can be in place until the child or children become an adult.
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 there are two types of custody that are decided in every Las Vegas child custody case.
What is Legal Custody?
Nevada law has defined legal custody as basic legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing. Rivero v. Rivero, 216 P.3d 213, 125 Nev. 410 (Nev. 2009). Sole legal custody would allow one parent to make these decisions, while joint legal custody requires both parents to make these decisions together through communication and compromise to act in the best interest of the child. If one parent refuses to consult or communicate with the other parent, the Court could decide that joint legal custody is not in the best interest of the child and award the other parent with sole legal custody.
Legal custody is not the amount of time spent with your children. While that may have some relevance on whether you are awarded joint legal custody or sole legal custody, legal custody it is not your time share by definition. In fact, a legal and physical custody arrangement can be completely opposite of one another. For example, one party can be awarded joint legal custody, while the other party is awarded primary physical custody.
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.
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 child 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.