How is child custody determined for unmarried parents in Nevada?

Custody of children by unmarried parents depends on what is in the best interest of the child in Nevada (NRS 125C.0035).

Nevada courts prefer that parents share joint custody of their children regardless of whether the parents are divorced or never married. But judges will award primary physical custody to one parent over the other if it is in the child's best interest.

In this article, our Las Vegas family law attorneys discuss how child custody in Nevada is determined for unmarried parents.

baby held in parent's arms (custody of children of unmarried parents)
A parent of a child born out of wedlock may get primary physical custody in Nevada if the other parent abandoned the child.

1. Determining custody of children in Nevada whose parents never married

Nevada courts typically award parents joint physical custody of their children born out of wedlock unless it is in the children's best interest to grant one parent primary physical custody. (Scroll down to section 2 for more information about what constitutes "the best interest of the child.")

When determining who gets primary physical custody, judges may not give preference to the mother over the father just because of gender.

1.1. When the mother gets custody in Nevada

The mother of a child born out of wedlock may get primary physical custody if the following three conditions are true:

  1. The mother has not married the minor's father; and
  2. The court has not entered any order or judgment determining paternity; and
  3. The minor's father either:
    1. is not subject to a presumption of paternity; or
    2. has never acknowledged paternity; or
    3. has actual knowledge of his paternity but abandoned the minor

Two situations where a man is generally presumed to be the natural father ("subject to a presumption of paternity") of a minor are:

  1. While the child is under 18 years old, he receives the child into his home and openly holds out the child as his natural child; or
  2. He and the minor's natural mother were cohabiting for at least six (6) months before the period of conception and continued to live together through the period of conception

A father is presumed to have "abandoned" his child if he either:

  • Failed for at least six (6) straight months to provide substantial personal and economic support to the minor; or
  • Knowingly declined for at least six (6) straight months to have any meaningful relationship with the minor

Note if the child is the product of rape -- and if the father gets convicted of rape -- then the father has no right to custody or visitation unless both:

  • the mother (or legal guardian) consents, and
  • it would be in the child's best interest

1.2. When the father gets custody in Nevada

The father of a child born out of wedlock may get primary physical custody if both:

  1. The mother abandoned the minor; and
  2. The father has provided sole care and custody of the minor in her absence

A mother is presumed to have "abandoned" her child if she either:

  • Failed for at least six (6) straight months to provide substantial personal and economic support to the minor; or
  • Knowingly declined for at least six (6) straight months to have any meaningful relationship with the minor1

2. The best interest of the child

In any child custody matter, the court hinges its decision on what is in the best interest of the child. Some of these considerations include the following:

  • The wishes of the minor if the minor is of sufficient age and capacity to form an intelligent preference as to his or her physical custody.
  • Any nomination of a guardian for the minor by a parent.
  • Which parent is more likely to allow the minor to have frequent associations and a continuing relationship with the noncustodial parent.
  • The level of conflict between the parents.
  • The ability of the parents to cooperate to meet the needs of the minor.
  • The mental and physical health of the parents.
  • The physical, developmental and emotional needs of the minor.
  • The nature of the relationship of the minor with each parent.
  • The ability of the minor to maintain a relationship with any sibling.
  • Any history of parental abuse or neglect of the minor or a sibling of the minor.
  • 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.
  • Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.

Judges will decide physical custody in the following order of preference as long as the arrangement is in the best interest of the child:

  1. To both parents jointly. If only one parent can spend at least 146 days caring for the child, then that parent would get primary physical custody. Then the other parent may get visitation.
  2. To people 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. It makes no difference if that relative resides outside of Nevada.
  4. To any other person or persons whom the court finds suitable and able to provide proper care and guidance for the child.

Having a history of domestic violence or abduction is a big strike against a parent. The judge will presume that he/she should not get sole or joint physical custody. However, that parent may still be able to "rebut" this presumption and persuade the court to grant him/her custody.2

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Learn how to modify child custody orders in Nevada. Also see our article, Do Nevada courts favor mothers in child custody battles?


Legal References

  1. NRS 125C.003; see e.g., Spencer v. Nevada State Welfare Division, 94 Nev. 627, 584 P.2d 669 (1978); NRS 125C.210.
  2. NRS 125C.0035.

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