SHARE AND SHARE ALIKE: THE INCREASING NATIONAL SHIFT TO EQUAL PHYSICAL CUSTODY MODELS

A recent article in the USA Today newspaper (“Joint custody: Divorce default?” by Jonathan Ellis, January 29, 2014) noted the nationwide increase in legislative initiatives aimed at mandating 50/50 child custody splits between divorcing parents.
Proponents of “shared custody” laws suggest that minor children are best served when they can enjoy equal time with both parents, presuming no intervening disability on the part of either parent exists (physical abuse or substance abuse, for example). Opponents – including at least one state bar association – argue that default imposition of joint physical custody arrangements erodes the discretion that judges must exercise in making custodial decisions that are in children’s best interests. These arguments rely largely on the observation that the capabilities of parents can often vary widely – and that a child’s best interest may well be served by reposing his or her primary physical custody in one parent, rather than splitting it between two.
The broadened call for shared, equal custody arrangements is partially seen as a reaction to changing societal gender roles, in which men are now more inclined to be active caretakers. Another contributing factor is the unfortunate perception among many non-custodial parents that their parental rights have been minimized by a judicial system that is intolerant and insensitive to the benefits of equal custody time.
Nevada law mandates that the sole consideration of a court in rendering a custodial determination is the best interest of the child. While the Nevada legislature created a statutory presumption that joint legal and joint physical custody are in the best interest of a child if the parents so agree, Nevada law does not separately presume that split custody must be applied in every case. It is Nevada’s public policy “…to ensure that minor children have frequent associations and a continuing relationship with both parents after the parents have become separated or have dissolved the marriage; …[and to] encourage such parents to share the rights and responsibilities of child rearing.” NRS 125.460. Nevada case law establishes that a joint physical custody arrangement does not require an exactly equal split of custodial time. In Nevada, if each parent has physical custody of a child no less than 40% of the time (146 day per year), then the arrangement is one of joint physical custody. See Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009). While it is clearly the case that joint physical custody arrangements have become much more frequently ordered in Nevada divorce cases, it still does not constitute a legal default.