I have noticed a trend recently with custody filings with the opposing party having an expectation of joint physical custody despite significant time having passed with the other parent having had primary physical custody. The conclusion comes from, in my opinion, a combination of bad legal advice[1] and reading the statute in isolation.
The Statute:
NRS 125.480 Best interests of child
1. In determining custody of a minor child in an action brought under this chapter, the sole consideration of the court is the best interest of the child. If it appears to the court that joint custody would be in the best interest of the child, the court may grant custody to the parties jointly.
2. Preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child.
3. The court shall award custody in the following order of preference unless in a particular case the best interest of the child requires otherwise:
(a) To both parents jointly pursuant to NRS 125.490 or to either parent. If the court does not enter an order awarding joint custody of a child after either parent has applied for joint custody, the court shall state in its decision the reason for its denial of the parent’s application. (emphasis added)
The bolded part, read in isolation, appears to be what leads to many people bringing custody complaints to conclude that they are entitled to joint physical custody. And why wouldn’t it? A strict reading makes it clear as day that the custody factors in order of weight clearly states that custody is to be awarded jointly and if the Court does not order joint custody the Court must state its reason or doing so. Most read the reason for doing so part as “must be deemed unfit”.
Rivero defined what joint and primary physical custody was and concluded that prior to modifying child custody the Court had to first conclude what custody existed; independent of that the existing court order stated as the parties had by agreement modified those terms. Rivero allowed for the creation of de facto custody arrangements that the Court would have to honor when a moving party demonstrated the actual timeshare to the Court for purposes of modification or otherwise. Rivero set the look-back period at one year when calculating the timeshare to determine the custody arrangement.
Many would wonder, including some attorneys, what does Rivero have to do with an initial custody case? The relevance is that it has been successfully argued in front of many family court Judges in Clark County that the de facto law established in Rivero applies to cases wherein child custody orders had not yet existed but the parties had established an agreed upon timeshare (primary or joint) through their actions, or inactions.
Bottom line, if you have not asserted any parental rights and have had only limited visitation for a significant period of time the Judge may conclude that a de facto custody arrangement already exists and issue a custody order consistent with that arrangement.
*The above is not to be construed as legal advice. Child custody matters are comprised of a variety of factors and circumstances specific to each matter; as such a consultation with an attorney is needed to properly review your matter and provide the appropriate advice.
[1] The bad legal advice being the certainty of their argument