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EspañolWhat can I expect to happen in court during the custody case?
Often times, the parents will come to an agreement about child custody. A judge will review that agreement and, under most circumstances, turn it into a formal court order. Only a court order can be enforced by the court if one person violates the order.
If the parents cannot come to an agreement, a judge might order the parents into mediation, where a mediator tries to get you and the other parent to come to an agreement. There are exceptions for domestic violence victims, however. See What is mediation? for more information.
If the parents still can’t agree after mediation, or if the judge doesn’t order mediation, then the case would go to trial. In a trial, there would be a hearing (that may last more than one day) where both sides can present evidence and witnesses to support their claim for custody. Then a judge will issue an order stating who gets custody and what the visitation should be.
As with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer or legal aid program in your area, please visit the NV Finding a Lawyer page.
How will a judge make a decision about custody?
A judge will make a custody order based on what s/he believes is in the best interest of the child. Judges generally prefer to award sole or joint custody to the child’s parents (as opposed to other relatives) if this is in the best interest of the child. The court will not automatically give preference to the mother or father just based on his/her gender.1
Judges look at the following factors when making custody decisions about what is in the best interest of the child:
- the wishes of the child (if the child is of “sufficient age and capacity to form an intelligent preference” as to his/her physical custody);
- any nomination of a guardian for the child by a parent;
- which parent is more likely to allow the child to have frequent contact and a continuing relationship with the non-custodial parent;
- the level of conflict between the parents;
- the ability of the parents to cooperate to meet the needs of the child;
- the mental and physical health of the parents;
- the child’s physical, developmental, and emotional needs;
- the quality of the child’s relationship with each parent;
- the ability of the child to maintain a relationship with any siblings;
- any history of abuse or neglect against the child or a sibling of the child;
- whether either parent has abducted the child or any other child;
- whether either parent (or any other person seeking physical custody) has committed an act of domestic violence against the child, a parent of the child, or any other person living with the child; and
- whether either parent (or any other person seeking physical custody) has committed an act of abduction against the child or any other child.2
For more information on how domestic violence affects a judge’s decision about custody, go to Can a parent who committed violence get custody?
1 N.R.S. § 125C.0035(1)-(3)
2 N.R.S. § 125C.0035(4)
When will the judge give primary physical custody to one parent?
In Nevada, a judge can award sole/primary physical custody to one parent or joint physical custody to both parents. Primary physical custody can be given to one parent if the judge determines that joint physical custody is not in the best interest of the child.1 The judge can award primary physical custody to either parent if:
- there is substantial evidence that the other parent is unable to adequately care for the child for at least 146 days of the year;2 or
- the judge determines by “clear and convincing evidence” (after a hearing) that the other parent committed one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child. (However, the parent who committed domestic violence can present evidence to the judge to try to change the judge’s mind about giving primary custody to the other parent.)3
The judge can aware primary physical custody to the mother if:
- the mother is unmarried when the child was born;
- she does not later marry the father; and
- paternity has not been established; or
- the father had actual knowledge of his paternity but he “abandoned” the child.4
The judge can aware primary physical custody to the father if:
- the mother has “abandoned” the child; and
- the father has provided sole care and custody of the child in her absence.5
Note: For purposes of awarding custody, the term abandoned means that for a continuous period of 6 months or more, the parent has:
- failed to provide substantial personal and economic support to the child; or
- knowingly declined to have any meaningful relationship with the child.6
1 N.R.S. § 125C.003(1)
2 N.R.S. § 125C.003(1)(a)
3 N.R.S. § 125C.003(1)(c)
4 N.R.S. § 125C.003((1)(b),(2)(a)
5 N.R.S. § 125C.003(2)(b)
6 N.R.S. § 125C.003(3)(a)
When will a judge order joint physical custody?
There is a preference in Nevada for both parents to have a continuing relationship and frequent contact with the child, and to share the rights and responsibilities of child rearing after the parents have separated or ended their relationship.1 However, in any court case regarding determining physical custody of a child, the sole (only) consideration that the judge will consider is what is in the best interest of the child.2 In Nevada, the judge will assume that awarding joint physical custody is in the “best interest of the child” if:
- the parents agree to it in court; or
- the parent seeking joint physical custody has demonstrated (or has tried to demonstrate but the other parent wouldn’t allow it) an intent to establish a meaningful relationship with the child.3
However, there is an exception for domestic violence victims. Read Can a parent who committed violence get physical custody? to learn more.
1 N.R.S. § 125C.001
2 N.R.S. § 125C.0035(1)
3 N.R.S. § 125C.0025(1)
When will a judge order joint legal custody?
There is a preference in Nevada for both parents to have a continuing relationship and frequent contact with the child, and to share the rights and responsibilities of child rearing after the parents have separated or ended their relationship.1 The judge will assume that awarding joint legal custody is in the best interest of the child if:
- the parents agree to it in court; or
- the parent seeking joint legal custody has demonstrated (or has tried to demonstrate but the other parent wouldn’t allow it) an intent to establish a meaningful relationship with the child.2
The judge could grant joint legal custody to both parents while still granting sole or primary physical custody to one parent.3 Therefore, even if your child lives with you full-time, the other parent can still have a right to make decisions about your child’s life if s/he has joint legal custody.
1 N.R.S. § 125C.001
2 N.R.S. § 125C.002(1)
3 N.R.S. § 125C.002(2)
If I have moved out of the home where the other parent and my children currently live, will this hurt my chances of gaining custody?
Maybe. If you leave without your children and the other parent has been doing a good job in caring for the children on his/her own since you left, the judge might consider this as a factor when making a custody decision. Some judges might also view leaving as evidence that you are putting other priorities before your children. However, a judge may also consider the reason why you left. For example, if you left to protect yourself from further physical abuse, this is important to prove in court since judges are supposed to assume that an abuser shouldn’t get custody. See Can a parent who committed violence get physical custody? for more information.
As with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer or legal aid program in your area, please visit the NV Finding a Lawyer page.
Can I change the state where the case is being heard?
Possibly. For information on trying to modify a final Nevada custody order in another state, or an out-of-state custody order in Nevada, go to our Changing a final custody order page in the general custody information to read what factors a judge will consider when deciding whether or not to transfer your case to a new state.
This is often complicated, and as with all custody issues, we recommend that you talk to a lawyer about this. To find legal resources in Nevada, go to our NV Finding a Lawyer page. To find legal resources in a state other than Nevada, go to our Finding a Lawyer page and select your state from the drop-down menu.
