NRS 125.490 states that Nevada has a presumption, “affecting the burden of proof, that joint custody would be in the best interest of the child” if the parents agree. NRS 125.490 (2) allows the court to award joint legal custody without awarding joint physical custody. Neither term, however, is defined.
NRS 125.480 (1) states that the “sole consideration of the court is the best interest of the child. If it appears that to the court that joint custody would be in the best interest of the child, the court may grant custody to the parties jointly.” Neither this provision, nor any other, however, defines what “joint custody” means. NRS 125.480 (3) reiterates the presumption for joint custody and if the court denies joint custody to a parent, it “shall state in its decision the reason for its denial.”
If there is clear and convincing evidence that a parent has engaged in domestic violence against the child, or any person living with the child, NRS 125.480 (5) creates a presumption that sole or joint custody of the child by the perpetrator of the domestic violence is not in the child’s best interest. “Sole” or “joint” custody is again not defined.
Joint legal custody involves mutual rights and responsibilities for major decisions regarding a child’s education, medical care and emotional and physical welfare. Physical custody is with whom and when the child resides.
Although it is not defined by statute, it is generally accepted in Family Court that there is a strong presumption that the parents will share joint legal custody. Joint legal custody is generally considered to include:
1. Both parties will continue to be fully involved in making major decisions about their child(ren)’s health, education, welfare, and religion.
2. All schools, health care providers, day care providers, and counselors shall be selected jointly by the parents.
3. Each parent shall consult and cooperate with the other in substantial questions relating to the religious upbringing, educational programs, significant changes in social environment, and health care of the child(ren).
4. Each parent shall be empowered to obtain emergency health care for the child(ren) without the consent of the other parent. Each parent is to notify the other parent as soon as reasonably practicable of any illness requiring medical attention, or any emergency involving the child(ren).
5. Each parent is to provide the other parent, upon receipt, with any information concerning the well-being of the child(ren), including, but not limited to, copies of report cards; school meeting notices; vacation schedules; class programs; requests for conferences; results of standardized or diagnostic tests; notices of activities involving the child(ren); samples of school work; order forms for school pictures; all communications from health care providers and the names, addresses, and telephone numbers of all schools, health care providers, regular day care providers, and counselors.
6. Each parent shall advise the other parent of any and all school, athletic, church, and social events in which the child(ren) participate(s), and each parent agrees to so notify the other within a reasonable time after first learning of the future occurrence of any such event so as to allow the other parent to make arrangements to attend the event if he or she chooses to do so. Both parents may participate in all such activities for the child(ren), such as open house, attendance at an athletic event, etc.
7. Each parent is to provide the other parent with the address and telephone number at which the minor child(ren) reside(s), and to so notify the other parent within ten (10) days prior to any change of address and further, to provide the telephone number of such address change as soon as it is assigned.
8. Each parent shall provide the other parent with a travel itinerary and, whenever reasonably possible, telephone numbers at which the child(ren) can be reached whenever the child(ren) will be away from that parent’s home for a period of two (2) nights or more.
Many Parenting Plans and decrees of divorce may also include aspirational goals as part of joint legal custody:
1. The parents will not place their child(ren) between them and their conflicts. The child(ren) are to be raised jointly by the parents and the parents agree to do so as two businesslike partners. As such business partners, when it comes to the child(ren), they agree to be cordial with each other and work out their differences in a fair and equitable manner.
2. The parents agree that the child(ren) shall never be put between the two parents in making a joint decision. Decisions shall be made by the parents together and handed down to the child(ren). The child(ren) shall not be permitted to play one parent against the other.
3. The parents agree that communication between them regarding their child(ren) is essential. The parents will regularly discuss their child(ren)’s needs, activities and conditions. The parents also will keep each other fully informed about significant events in their child(ren)’s life (lives).
4. The parents will be jointly responsible for raising their child(ren) and will work together to share fairly in their child(ren)’s expenses, living arrangements, and care. Both parents will take part in school conferences, doctors’ appointments, religious education, etc.
5. Both parents acknowledge that they each value and respect the other parent as a co-parent, regardless of their other differences. Each parent also agrees that it is essential for the child(ren) to have access to and involvement with both parents.
6. Both parents agree that should differences arise between them, every attempt will be made to work such differences out in a fair and equitable manner, before resorting to legal action.
7. Neither parent shall interfere with the right of the child(ren) to transport his/her/their clothing and personal belongings freely between the parents’ respective homes.
8. Neither parent shall disparage the other in the presence of the child(ren), nor shall either parent make any comment of any kind that would demean the other parent in the eyes of the child(ren). Additionally, each parent agrees to instruct their respective families or friends that no disparaging remarks are to be made regarding the other parent in the presence of the child(ren), and the parents shall report to each other in the event such disparaging remarks are made.
9. The parents further agree to communicate directly with each other regarding the needs and well being of their child(ren) and each parent agrees not to use the child(ren) to communicate to the other parent regarding parental issues.
To rebut the presumption of joint legal custody requires clear and convincing proof of domestic violence pursuant to NRS 125.480(5) or some other extraordinary circumstance.
Until recently, the Family Court frequently awarded one parent primary physical custody and awarded the “visiting” parent “reasonable visitation.” Primary physical custody is not even referenced in the statute. Despite abolishment of the “Tender Years Doctrine,” (where the mother was generally awarded primary custody of young children) the mother was still generally designated as the primary physical custodian and the father designated as the visiting parent. In those rare instances where the parties agreed to joint physical custody, the court would adopt their stipulation. With changes in the social and economic development of our country, joint or shared arrangements have become more popular with the court. This, however, has created some conflicts where none used to exist. The recent Nevada Supreme Court case of Rivero v Rivero, 125 Nev. 410, 216 P.3d 213 (2009), created a “shared” physical custody designation. Like “primary” custody, or “joint physical custody,” there is no statutory definition.
Those who practice primarily in family law know that except for three issues, the designation or label, of physical custody is meaningless. The only three areas where the label of physical custody has any significance are:
1. The standard for a change of custody;
2. The method in which chid support is calculated; and
3. The standard for a proposed relocation.
After the formation of the Clark County Family Court in 1994, the concept of joint physical custody developed more meaning. Judges who devoted themselves exclusively to family law matters acknowledged the rejection of the “tender years” doctrine and became familiar with the research that showed it was in children’s best interest to spend as much time with both parents as possible.
Joint physical custody in the strictest sense of an equal timeshare became more frequent. Nevertheless, the traditional case of one party being awarded primary physical custody subject to the visitation of the other parent started giving way to some Family Court Judges using the term “joint legal, shared physical custody.” The judges did not seem concerned that “shared” custody was not defined in the statutes because “primary” custody was not referenced and joint custody was not clearly defined. The judges seemed to use the term shared to soften “the blow” to the nonprimary parent who did not win custody. Further, sometimes this designation was used to justify a downward deviation of the child support award, although this was not necessary under NRS 125B.080(9).
In some cases, the judges then would award “joint legal and joint physical” custody with one parent designated primary only for the purposes of child support. It should be noted that this argument rejected in Wright v.Osburn, 114 Nev. 1367, 970 P.2d 1071 (1998). In Wright v. Osburn, however, the supreme court did not specifically use that term, but in that particular case the parties did exercise an equal time share by alternating weeks. From this, attorneys began to use primary custody except for purposes of a move, shared for purposes of child support and carved out other exceptions. We now have hybrid designations that are not found in a statute and have not been approved by the Nevada Supreme Court. In fact, the Nevada Supreme Court rejected the opportunity to resolve these issues. See Potter v. Potter, 121 Nev. 613, 119 P.3d 1246 (2005), footnote 16. The court may find the right case to discuss these issues, but the legislature should immediately act.
Although compromise designations may resolve some matters in the short term, they will only invite litigation in the future with judges trying to interpret these hybrid labels. More than likely, different judges will interpret them differently and inconsistent decisions will result in custody and support awards.