Child Custody

702 565-4335

McFarling Law Group routinely represents parents in child custody litigation. Whether you are seeking primary or joint physical custody or wanting to ensure the best terms for visitation or legal custody, McFarling Law Group can help.

Child custody disputes comprise the majority of family law matters. Child Custody can be a very contentious issue and often times the child is put in the middle of a dispute that is between the parents. A child custody dispute requires an experienced, aggressive child custody attorney that is capable of going into court and fighting for your custodial rights. An experienced child custody attorney understands Nevada law and also knows the tendencies of the various family court Judges in Las Vegas. Each Judge weighs each custody factor differently.

The Legal Standard

In making a child custody determination, the ultimate factor the court must consider is the best interests of the minor child.

NRS 125C.0035  Best interests of child: Joint physical custody; preferences; presumptions when court determines parent or person seeking custody is perpetrator of domestic violence or has committed act of abduction against child or any other child.

      1.  In any action for determining physical custody of a minor child, the sole consideration of the court is the best interest of the child. If it appears to the court that joint physical custody would be in the best interest of the child, the court may grant physical 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 physical 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 125C.0025 or to either parent pursuant to NRS 125C.003. If the court does not enter an order awarding joint physical custody of a child after either parent has applied for joint physical custody, the court shall state in its decision the reason for its denial of the parent’s application.

      (b) To a person or persons in whose home the child has been living and where the child has had a wholesome and stable environment.

      (c) To any person related within the fifth degree of consanguinity to the child whom the court finds suitable and able to provide proper care and guidance for the child, regardless of whether the relative resides within this State.

      (d) To any other person or persons whom the court finds suitable and able to provide proper care and guidance for the child.

      4.  In determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things:

      (a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her physical custody.

      (b) Any nomination of a guardian for the child by a parent.

      (c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.

      (d) The level of conflict between the parents.

      (e) The ability of the parents to cooperate to meet the needs of the child.

      (f) The mental and physical health of the parents.

      (g) The physical, developmental and emotional needs of the child.

      (h) The nature of the relationship of the child with each parent.

      (i) The ability of the child to maintain a relationship with any sibling.

      (j) Any history of parental abuse or neglect of the child or a sibling of the child.

      (k) Whether either parent or any other person seeking physical custody has engaged in an act of domestic violence against the child, a parent of the child or any other person residing with the child.

      (l) Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.

      5.  Except as otherwise provided in subsection 6 or NRS 125C.210, a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking physical custody has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint physical custody of the child by the perpetrator of the domestic violence is not in the best interest of the child. Upon making such a determination, the court shall set forth:

      (a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and

      (b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child.

      6.  If after an evidentiary hearing held pursuant to subsection 5 the court determines that each party has engaged in acts of domestic violence, it shall, if possible, then determine which person was the primary physical aggressor. In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider:

      (a) All prior acts of domestic violence involving either party;

      (b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence;

      (c) The likelihood of future injury;

      (d) Whether, during the prior acts, one of the parties acted in self-defense; and

      (e) Any other factors which the court deems relevant to the determination.

Ê In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 5 applies to both parties. If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 5 applies only to the party determined by the court to be the primary physical aggressor.

      7.  A determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child creates a rebuttable presumption that sole or joint physical custody or unsupervised visitation of the child by the perpetrator of the abduction is not in the best interest of the child. If the parent or other person seeking physical custody does not rebut the presumption, the court shall not enter an order for sole or joint physical custody or unsupervised visitation of the child by the perpetrator and the court shall set forth:

      (a) Findings of fact that support the determination that one or more acts of abduction occurred; and

      (b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other person from whom the child was abducted.

      8.  For the purposes of subsection 7, any of the following acts constitute conclusive evidence that an act of abduction occurred:

      (a) A conviction of the defendant of any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct;

      (b) A plea of guilty or nolo contendere by the defendant to any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct; or

      (c) An admission by the defendant to the court of the facts contained in the charging document alleging a violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.

      9.  If, after a court enters a final order concerning physical custody of the child, a magistrate determines there is probable cause to believe that an act of abduction has been committed against the child or any other child and that a person who has been awarded sole or joint physical custody or unsupervised visitation of the child has committed the act, the court shall, upon a motion to modify the order concerning physical custody, reconsider the previous order concerning physical custody pursuant to subsections 7 and 8.

      10.  As used in this section:

      (a) “Abduction” means the commission of an act described in NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.

      (b) “Domestic violence” means the commission of any act described in NRS 33.018.

 

NRS 125C.001  State policy.  The Legislature declares that it is the policy of this State:

      1.  To ensure that minor children have frequent associations and a continuing relationship with both parents after the parents have ended their relationship, become separated or dissolved their marriage;

      2.  To encourage such parents to share the rights and responsibilities of child rearing; and

      3.  To establish that such parents have an equivalent duty to provide their minor children with necessary maintenance, health care, education and financial support. As used in this subsection, “equivalent” must not be construed to mean that both parents are responsible for providing the same amount of financial support to their children.

 

      NRS 125C.0015  Parents have joint custody until otherwise ordered by court.

      1.  The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.

      2.  If a court has not made a determination regarding the custody of a child, each parent has joint legal custody and joint physical custody of the child until otherwise ordered by a court of competent jurisdiction.

 

      NRS 125C.002  Joint legal custody.

      1.  When a court is making a determination regarding the legal custody of a child, there is a presumption, affecting the burden of proof, that joint legal custody would be in the best interest of a minor child if:

      (a) The parents have agreed to an award of joint legal custody or so agree in open court at a hearing for the purpose of determining the legal custody of the minor child; or

      (b) A parent has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child.

      2.  The court may award joint legal custody without awarding joint physical custody.

 

      NRS 125C.0025  Joint physical custody.

      1.  When a court is making a determination regarding the physical custody of a child, there is a preference that joint physical custody would be in the best interest of a minor child if:

      (a) The parents have agreed to an award of joint physical custody or so agree in open court at a hearing for the purpose of determining the physical custody of the minor child; or

      (b) A parent has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child.

      2.  For assistance in determining whether an award of joint physical custody is appropriate, the court may direct that an investigation be conducted.

 

      NRS 125C.003  Best interests of child: Primary physical custody; presumptions; child born out of wedlock.

      1.  A court may award primary physical custody to a parent if the court determines that joint physical custody is not in the best interest of a child. An award of joint physical custody is presumed not to be in the best interest of the child if:

      (a) The court determines by substantial evidence that a parent is unable to adequately care for a minor child for at least 146 days of the year;

      (b) A child is born out of wedlock and the provisions of subsection 2 are applicable; or

      (c) Except as otherwise provided in subsection 6 of NRS 125C.0035 or NRS 125C.210, there has been a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that a parent has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child. The presumption created by this paragraph is a rebuttable presumption.

      2.  A court may award primary physical custody of a child born out of wedlock to:

      (a) The mother of the child if:

             (1) The mother has not married the father of the child;

             (2) A judgment or order of a court, or a judgment or order entered pursuant to an expedited process, determining the paternity of the child has not been entered; and

             (3) The father of the child:

                   (I) Is not subject to any presumption of paternity under NRS 126.051;

                   (II) Has never acknowledged paternity pursuant to NRS 126.053; or

                   (III) Has had actual knowledge of his paternity but has abandoned the child.

      (b) The father of the child if:

             (1) The mother has abandoned the child; and

             (2) The father has provided sole care and custody of the child in her absence.

      3.  As used in this section:

      (a) “Abandoned” means that a mother or father has:

             (1) Failed, for a continuous period of not less than 6 months, to provide substantial personal and economic support to the child; or

             (2) Knowingly declined, for a continuous period of not less than 6 months, to have any meaningful relationship with the child.

      (b) “Expedited process” has the meaning ascribed to it in NRS 126.161.

In all child custody decision, court shall state, in its decision, the reasons for the decision.

How the Court Process Works

Unless agreed upon, an order for child custody generally only occurs after the court conducts an evidentiary hearing and can make proper findings of fact and conclusions of law.

Initial custody proceedings: In an initial custody proceeding, whether a stand alone custody or paternity case or a divorce case, either parent may include child custody requests for both physical and legal custody. Child custody will generally be heard with the other issues in a divorce case, although sometimes at a separate evidentiary hearing prior to a trial on the financials in a divorce.

Motions regarding child custody after an initial custody order: The first step in addressing child custody issues after an order is in place is to file a motion. The motion will result in a hearing wherein the judge will determine whether to proceed further. The judge at the first hearing may deny the motion, send the parties to mediation, set an evidentiary hearing, or gather additional information before determining how to proceed. McFarling Law Group can assist in all phases of the process from drafting motions and oppositions to putting on the best case at an evidentiary hearing, which is similar to a trial.

Reaching an Agreement

At any time, Parties can agree to child custody and visitation orders. This should be done through a parenting plan or stipulation and order signed by a judge and filed with the Court if an order is already in place or as part of a divorce case and through a decree of custody or paternity if in an initial custody or paternity case. If you need help negotiating an agreement or have reached an agreement and simply need to make sure the paperwork is done properly, McFarling Law Group can help.

Experienced Attorneys at Your Side

At McFarling Law Group, our lawyers are experienced in all family law matters, including child custody. If you would like to schedule a consultation with an experienced child custody lawyer in Las Vegas, NV area, call our office at 702.565.4335.

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