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    Family Law Division

    Nevada Child Custody Laws – Who Gets The Kids?

    Nevada law recognizes two forms of child custody for minor children:

    1. physical custody and
    2. legal custody.

    If a parent has physical custody, the child lives with the parent at least some of the time. If the parent has legal custody, the parent has the right to make important decisions about a child’s upbringing.

    The court can award sole or shared custody to either or both parents. A parent does not need physical custody in order to share legal custody.

    A parent with custody of a child is sometimes called a “custodial” parent. A parent who does not have custody of a child is a “non-custodial” parent.

    To help you better understand child custody laws in Nevada, our Las Vegas family law attorneys discuss:

    You may also wish to review our articles on Visitation Rights in Nevada, Father’s Rights in Nevada, How a Court Determines Child Support in a Nevada Divorce, and Divorce in Nevada with a Child – 3 key things to know.

    parent and child touching hands

    1. What is physical custody of a child?

    Physical child custody refers to the physical living arrangement between parent and child.

    If a child physically resides with a parent more than 60% of the time, that parent has primary physical custody.

    If the child spends at least 40% of their time with each parent, the parents share joint physical custody of the child.

    Sole custody is where a parent has the child 100% of the time.

    Note that parents with sole- or primary physical custody are entitled to child support from the other parent. In some joint custody cases, the parent with a higher salary may be ordered to pay child support to the other parent.

    2. What is legal custody of a child?

    Legal custody refers to the right of a parent to make important decisions about a child’s upbringing. This can include:

    • What school a child attends,
    • What religion the child practices, and
    • What medical treatments a child receives.

    Usually, a parent with physical custody of a child will at least share legal custody. Though the court may award joint legal custody to a parent who does not share joint physical custody.1

    See our related article about types of custody: The difference between legal and physical custody in Nevada.

    3. How is child custody determined in Nevada?

    Child custody in Nevada is determined in one of two ways:

    1. By mutual agreement of the parents, or
    2. By a court’s determination.

    Until the court finalizes the custody arrangement, each parent automatically has joint legal custody and joint physical custody of the child.2

    The court will presume joint custody is in the best interest of the child if:

    • The parents have agreed to joint custody, or
    • Each parent has tried to establish a meaningful relationship with the child — even if the other parent has frustrated those efforts.3

    Sometimes, angry or frustrated parents make up lies about the other parent in an attempt to get an advantage in a child custody trial. Examples include accusing the other parent of drug use, domestic violence, or spousal rape (NRS 200.373).

    Note that judges may issue a temporary child custody order while the case is pending. Then, when the case is finally resolved, the court will issue a permanent order. If you are getting divorced, the order should be part of your divorce decree.

    3.1. Mediation

    Parents in a custody dispute in Las Vegas must attend mediation. During mediation, the parents will try to agree on a custody agreement, parenting plan, and a visitation schedule (if applicable).

    If the parents cannot agree, a judge will determine custody.

    Note that if you choose to go to trial, you may have to disclose your evidence to your co-parent beforehand. Consult a family law attorney about the evidentiary rules you must abide by.

    African American couple on sofa not looking at each other

    3.2. How does a judge award custody?

    The sole consideration of a court is the best interest of the child in Nevada (NRS 125C.0035).4

    Factors a judge considers when determining the best interests of a child include (without limitation):

    • Any history of child neglect or abuse by a parent,
    • If either parent had a past act of domestic violence,
    • The wishes of the child if they are old enough (“teenage discretion”),
    • The ability of the child to maintain relationships with siblings,
    • The level of conflict between the parents,
    • The ability of the parents to cooperate to meet the needs of the child,
    • The mental and physical health of the parents,
    • The physical and emotional needs of the child, and
    • The child’s relationship with each parent.5

    The court may order an investigation into whether physical custody is appropriate.6

    Judges try to keep children from ever having to appear in court. However, if necessary, the judge can order a certified mental health specialist to interview the child. In rare cases, the judge may have to appoint a custody evaluator/guardian ad litem to speak for the child’s best interests.

    Also see our related articles on how to determine custody of children with unmarried parents and Do Nevada courts favor mothers in child custody battles?

    3.3. Do mothers have greater custody rights than fathers?

    Judges may not inherently favor a mother over a father when making a custody determination in Nevada.

    The best interests of the child are the only thing that matters. If it is in the child’s best interests, the court may grant physical custody to the parties jointly.7

    Once a judge has made the determination, it is binding on the parents.

    4. How does Nevada law define who is a parent?

    Under Nevada NRS 126 marital status does not determine who is a parent.8 Rather, a parent and child relationship exists when:

    • Someone has given birth to the child (other than pursuant to an agreement to be a surrogate),
    • The person has legally adopted the child,
    • Unmarried or same-sex people have signed a co-parenting agreement,
    • The child was born for the parent using a surrogate, or
    • A man donated sperm with the intention of being the parent of the resulting child.9

    5. How about child custody and same-sex parents?

    The Nevada Supreme Court has held that same-sex parents can have an enforceable parent / child relationship.10

    An agreement to be parents is all that matters. What does not matter is:

    • The gender of the parents, or
    • A biological relationship between parent and child.

    Example: Mark and Jacob are a male couple that wants to have a child. Mark will provide his sperm. Jacob’s sister, Mary, will donate her eggs. The baby will be carried by Alice, a hired surrogate.

    If there was no written agreement, a court might assume that Alice was the baby’s mother. Though Mark, Jacob, Mary and Alice sign a contract setting forth the relationship. Under the terms of the agreement, Mark and Jacob are the parents. Neither Mary nor Alice has any parenting rights.

    You can learn more about legal same-sex relationships in our article on Same-sex marriage and domestic partnerships in Nevada.

    Same sex male couple playing in bed with their two young children

    6. Can I get custody if I am not the child’s parent?

    A court may award custody to someone other the child’s parent only when:

    1. Awarding custody to a parent would be detrimental to the child, and
    2. Awarding custody to a non-parent is necessary for the child’s best interests.11

    For more information, you may wish to see our article on Guardianships in Nevada and Grandparents’ Rights in Nevada.

    7. If I am not awarded custody, will I still have visitation rights?

    A judge may grant visitation rights to a parent who does not have custody. It can do so by a visitation order.

    The court order must set forth the time and terms of the visits. The terms must be specific enough so that:

    1. A court can enforce the rights of the parents, and
    2. The order serves the best interest of the child.12

    A court may also order “make-up” visits if a parent having custody wrongfully deprives the other parent of visitation rights.13

    Note that courts can require that the visitation be supervised if it is in the child’s best interest.

    8. How do I get a child custody order modified in Las Vegas?

    Either parent may petition the court to modify a custody order.14 Reasons for modifying a custody order include:

    • A parent can no longer afford support due to changed circumstances (such as losing a job),
    • The child has new special needs (such as required medical care), or
    • The parent with custody wants to move out of state.

    Usually judges will not make changes until they hear from both parents. However, in some cases, courts issue an “ex-parte order” to temporarily change child custody at the request of one parent without giving the other parent notice or a hearing.

    Note that if your co-parent is late on paying child support, you still have to honor the child custody arrangement until if/when the court agrees to intervene.

    Learn how to modify child custody orders in Nevada.

    9. What if a parent wants to move out of state?

    A parent with primary physical custody can move with a child only after:

    • Getting consent from the other parent, or
    • Getting the consent of the court.15

    This rule applies to:

    • All moves out of state, and
    • Moves within Nevada that would impair the other parent’s meaningful relationship with the child.

    There are consequences if a non-custodial parent does not agree to a reasonable request to move. The court can order that parent to pay the other parent’s attorney’s fees if:

    • The parent without custody refuses the request without reasonable grounds; or
    • A parent withholds consent to harass the parent who has custody.

    Note that if a parent abducts a child and flees to another state, the Nevada court retains exclusive jurisdiction over that child. Under the Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), other states must give full faith and credit to Nevada’s custody orders.16

    How does a Las Vegas court determine whether to let a parent move?

    A custodial parent desiring to move out of Nevada must prove to the court that:

    1. There is a sensible, good-faith reason for the move,
    2. The move is not intended to deprive the non-relocating parent of their parenting time,
    3. The best interests of the child favor the relocation, and
    4. The move will benefit both the child and relocating parent.

    The court can also consider whether the other parent will be able to maintain a meaningful relationship with the child.17

    10. What is the penalty for violating a Nevada child custody order?

    It is a Nevada category D felony to violate a child custody order. Violations of a child custody order in Nevada include:

    • Willfully detaining, concealing or removing a child from a parent’s lawful custody;
    • Willfully depriving a parent of a right of visitation; or
    • Removing the child from the court’s jurisdiction without the consent of the court or the other parent.18

    Violation of a custody order in Nevada can be punished by:

    • 1-4 years in Nevada state prison, and/or
    • A fine of up to $5,000.19

    11. Do both parents have to agree to change their child’s name?

    In most cases, yes. Depending on the case, though, the court may agree to a name change if only one parent wants it.

    Legal references:

    1. Nevada Revised Statute 125C.002 (2). Re. child support, see also NRS 125B.070 and NRS 125B.080.
    2. NRS 125C.0015 (2).
    3. NRS 125C.002 (1) and NRS 125C.0025 (1). See also Davis v. Ewalefo (Supreme Court of Nevada, 2015) 131 Nev. 445.
    4. NRS 125C.0035. Roe v. Roe (2023) 139 Nev. Adv. Op. 21
    5. NRS 125C.0035 (4).
    6. NRS 125C.0025 (2). See also AB 227 (2023) (summary proceedings when both parents agree).
    7. NRS 125C.0035.
    8. NRS 125C.0015 (1).
    9. NRS 126.041; NRS 126.051; NRS 126.680.
    10. St. Mary v. Damon, 129 Nev. App. Op. 68 (2013).
    11. NRS 125C.004.
    12. NRS 125C.010.
    13. NRS 125C.020.
    14. NRS 125C.0045. See also Blount v. Blount (2022) 138 Nev. Adv. Op. 32; Ellis v. Carucci (Supreme Court of Nevada, 2007) 123 Nev. 145.
    15. NRS 125C.006;  NRS 125C.0065. See also Pelkola v. Pelkola, (2021) 137 Nev., Advance Opinion 24 (“NRS 125C.006(1)(b) applies not only to relocation from Nevada to a place outside of Nevada, but also from a place outside of Nevada to another place outside of Nevada. Further, the district court must issue specific findings for each of the NRS 125C.007(1) factors and, if applicable, the NRS 125C.007(2) factors.”)
    16. 28 U.S.C. § 1738A. NRS 125A.005 – NRS 125A.605.
    17. NRS 125C.007.
    18. NRS 125C.0045 (6); NRS 125C.0075; NRS 200.359.
    19. NRS 193.130 (2)(d).
     

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