NRS 125C.0035 - "Best Interest of the Child" in Nevada

NRS 125C.0035 is the Nevada law which defines "best interest of the child." When a child's parents divorce (or never marry), Family Court judges will make Nevada child custody determinations based on what arrangement will best serve the minor's well-being.

Some of the factors that go into a court's best interest of children analysis include: ·

  • the child's ability to maintain contact with siblings
  • the mental and physical health of both parents
  • the child's physical and emotional needs
  • any history of abuse
  • the child's wishes, if the child is of a sufficient age and intelligence to decide
  • the child's relationship with each parent
  • the level of conflict between the parents
  • whether either parent has committed an act of abduction against the child or any other child
  • each parent's willingness to encourage a relationship between the child and the co-parent

Nevada law presumes joint custody is in the best interest of children unless other factors specific to the case dictate otherwise.

In this article, our Las Vegas family law attorneys discuss what constitutes the best interest of children in Nevada custody cases under NRS 125C.0035:

two parents and a child (NRS 125C.0035)
Nevada judges consider what's in children's best interest when deciding custody issues under NRS 125C.0035.

1. Legal definition of "best interest of the child" in Nevada under NRS 125C.0035

There is not a standard definition of “best interest of the child” in Nevada. The phrase generally refers to the numerous factors related to a child's circumstances as well as the parent or caregiver's circumstances and capacity to be a quality parent (enumerated in the next section).

Family court judges are required to keep a child's safety and well-being at the forefront of their child custody decisions. A parent's convenience or what seems "fair" is always less important than what serve's the child's best interests.1

2. "Best interest of the child" factors in Nevada under NRS 125C.0035

Twelve of the considerations judges take into account when determining which custody arrangement is in a child's best interest include:

  1. the minor's wishes if the minor is of sufficient age and capacity to form an intelligent preference as to his/her physical custody;
  2. any nomination of a guardian for the minor by a parent;
  3. which parent is more likely to allow the minor to have frequent associations and a continuing relationship with the noncustodial parent;
  4. the level of conflict between the parents;
  5. the ability of the parents to cooperate to meet the minor's needs;
  6. the parents' mental and physical health;
  7. the minor's physical, developmental and emotional needs;
  8. the nature of the relationship between the minor and each parent;
  9. the ability of the minor to maintain a relationship with any sibling;
  10. any history of parental abuse or neglect of the minor or a sibling of the minor;
  11. whether either parent or any other person seeking physical custody has engaged in an act of domestic violence against the minor, a parent of the minor, or any other person residing with the minor; and
  12. whether either parent or any other person seeking physical custody has committed any act of abduction against the minor or any other minor

Nevada judges can take anything that affects a child's well-being into account in order to decide which parent or guardian the child should live with.2

3. Joint versus primary custody in Nevada

Custody comes in two forms:

  1. Legal custody, which refers to a parent's responsibility for making major decisions concerning a child's health, education, or general welfare; and
  2. Physical custody, which refers to the child's physical residence with a parent

Nevada law favors that both parents share "joint" legal and physical custody. (Parents have joint physical custody if they each spend at least 40% of their time with the child).

But if it is in the child's best interests, the court may grant primary physical custody to one parent. (Primary physical custody is when one parent spends more than 60% of his/her time with the child.)

Even if one parent has primary physical custody and the other parent has only Nevada child visitation rights, the court can still grant both parents joint legal custody. But if joint legal custody would not be in the child's best interest, the court could grant the parent with primary physical custody all the powers of legal custody as well.

It is possible that a judge would grant physical custody to one parent and legal custody to another, but this is rare.

Nevada judges will award physical custody in the following order of preference unless the best interest of the child requires otherwise:

  1. To both parents jointly. Otherwise to one parent primarily with visitation rights to the other.
  2. To a person(s) in whose home the child has been living and where the child has had a wholesome and stable environment.
  3. 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 in Nevada.
  4. To any other person(s) whom the court finds suitable and able to provide proper care and guidance for the child.3

See our related articles on father's custody and visitation rights in Nevada, grandparents' rights in Nevada, and custody of children born out of wedlock in Nevada.

4. Modifying custody orders in Nevada

It is important to note that if a parent or guardian loses a custody battle in Nevada, the court's determination is not final. Because the best interest of children is always the court's main concern, Nevada law states that custody and visitation determinations can be modified at any time if the minor's living situation has changed for the worse. 

The first step in seeking to modify a court-ordered custody determination would be to file a motion for modification. The court would then hold an evidentiary hearing where the judge would make "findings of fact and conclusions of law" as to whether child custody should be altered. 4

See our related article on how to modify child custody orders in Nevada.

5. Mediation in Nevada over child custody

If the issue of custody is a major roadblock in a Nevada divorce proceeding, certain counties in Nevada require courts to provide mediation. Parents are required to attend unless one parent has a history of child abuse or domestic violence. 

If the mediation is unsuccessful, a judge will use the best interest of the child standard to determine the custody arrangements.

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Legal References

  1. NRS 125C.0035 (formerly NRS 125.480)("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. Id.; Sims v. Sims, 109 Nev. 1146, 1148, 865 P.2d 328, 330 (1993)("The trial court enjoys broad discretionary powers in determining questions of child custody."); see David Ferrara, "Las Vegas family court judge reprimanded by state", Las Vegas Review-Journal (June 19, 2018)(A family court was reprimanded for issuing a custody order that was not in the best interest of the child at issue).
  3. NRS 125C.003 & NRS 125C.0035.
  4. Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009)([T]he district court only has authority to modify a child support order upon finding that there has been a change in circumstances since the entry of the order and the modification is in the best interest of the child").

 

 

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