Who can file for custody? Can a non-parent get custody?
Although normally one or both of the child’s parents are the ones who would file for custody, it could be possible that a person other than a child’s parent can apply for custody. The laws states that the first preference for custody of a child should be the child’s parents or parent.1 Before the judge gives custody to any person other than a parent (unless the parents consent), the judge must determine that giving custody to a parent would be detrimental (harmful) to the child and that giving custody to a non-parent is required to serve the best interest of the child.2 If custody is going to be given to a non-parent, judges will award custody in the following order of preference unless the best interest of the child conflicts with this order:
- To a person(s) in whose home the child has been living if it is a wholesome and stable environment;
- To a relative of the child (within the fifth degree of consanguinity) who the court finds to be suitable and able to provide proper care and guidance for the child; it doesn’t matter if this person lives in Nevada or in another state;
- To any other person(s) who the court finds to be suitable and able to provide proper care and guidance for the child.3
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.
1 N.R.S. § 125C.0035(3)(a)
2 N.R.S. § 125C.004(1)
3 N.R.S. § 125C.0035(3)(b)-(d)
Can a parent who committed violence get physical custody?
If a judge finds that a parent or any other person asking for physical custody committed one or more acts of domestic violence against the child, a parent of the child, or any other person living with the child, then the judge will assume that it is not in the best interest of the child to grant sole or joint physical custody to that parent. However, the abusive parent can present evidence to try to change the judge’s mind and to prove that it would be in the child’s best interest to give him/her physical custody. If the judge is convinced, s/he may give the abusive parent sole or joint custody of the child.1
If a judge finds that both parents committed domestic violence, the judge must try to determine which parent was the “primary physical aggressor” (the more violent parent). In making this determination, the judge will consider:
- all prior acts of domestic violence involving either party;
- if the violence caused any injuries, the judge will compare how serious each person’s injuries were;
- the likelihood of a future injury;
- whether one of the parties acted in self-defense; and
- any other relevant factors.2
If the judge makes a decision as to who is the more violent parent, the judge must assume that it is in the best interest of the child for the less violent parent to get physical custody. If a judge cannot figure out which parent is the more violent parent, s/he will assume that it is in the best interest of the child for neither parent to have physical custody.2
Note: If either parent (or any other person) seeking custody has committed any act of abduction against the child or any other child, the judge will assume that sole or joint custody or unsupervised visitation of the child by that parent is not in the best interest of the child.3 To read more about what acts qualify as “abduction,” read AB 263, § 8, subsections (8) & (10) on our NV Statutes page.
As with all custody issues, we recommend that you talk to a lawyer. To find a lawyer or legal aid program in your area, please visit the NV Finding a Lawyer page.
1 N.R.S. §§ 125C.230(1); 125C.0035(5)
2 N.R.S. §§ 125C.230(2); 125C.0035(6)
3 N.R.S. § 125C.0035(7)
I am the child's grandparent, sibling or person with whom the child lived. Can I get visitation?
A judge may grant visitation rights to:
- a child’s grandparents;
- a child’s great-grandparents;
- a child’s siblings (including half-siblings and step-siblings); and/or
- any person with whom the child lived if they established “meaningful relationship.”1
However, it can only be granted to one of those people under the following circumstances:
- a parent of the child has denied or unreasonably restricted your visitation with the child; and
- the child’s parent:
- has died;
- is divorced or separated from the parent who has custody of the child;
- was never married to the other parent but lived together with that parent and is now dead or separated from the other parent; or
- no longer has parental rights (because s/he gave them up them or a judge took them away).2
Note: If the child’s parent already denied you visitation, the judge will assume that visitation is not in the best interest of the child but you will have the chance to present evidence to try to show the judge that it is in the best interest of the child to grant you visitation rights. The judge will consider the following factors when deciding whether or not to grant you visitation:
- the love, affection, and emotional bonds between you and the child;
- your ability to serve as a role model for the child;
- whether or not you are able to provide the child with love, affection, guidance, food, clothing, shelter, and health care during visitation;
- your morals and mental and physical health;
- whether you will encourage a close relationship between the child and his/her parent(s) and other relatives;
- any medical needs of the child that would be affected by the visitation;
- the prior relationship between you and the child, including any support (financial or otherwise) that you gave to the child and if you lived together and/or spent holidays together with the child;
- whether or not the child wants to visit with you (if the child is old enough to decide); and
- any other factors specific to your situation.3
1 N.R.S. § 125C.050(1)-(2)
2 N.R.S. § 125C.050(1)-(3)
3 N.R.S. § 125C.050(4)-(6)