Child Custody

Overview of Custody, Paternity and Child Support

Child custody issues are involved in many cases at family court. A court must address paternity, child custody, visitation, child support, and other child-related matters whenever parents file a court action. When parents are married, these issues are handled as part of a divorce, separation, or annulment. When parents are not married, these issues are handled as part of a custody or paternity case.

The Court Process
When parents are married, custody issues are decided as part of a divorce, separation, or annulment.  When parents are not married, either parent can file a Complaint for Custody or Paternity (depending on the main issue to be addressed).  The person who files the complaint is the "plaintiff" and the other parent is the "defendant."  The plaintiff's complaint will list the orders the plaintiff would like, and the defendant can Respond to the Complaint by filing an "Answer and Counterclaim" listing what orders he or she would like.

People often wonder how long the custody process will take.  There is no easy answer to that question since all cases are different.  If you and the other parent can agree to most or all of terms, the case can be finished fairly quickly.  If you and the other parent cannot agree on very many things, you may have to go to court several times before the final order can be granted.

For a Nevada court to make any child custody and visitation orders, Nevada must be the “home state” of the children. This means that the children usually must have lived in Nevada for 6 months (or since birth if the child is not yet 6 months old) before the case is filed.

If the child left Nevada less than six months ago and a parent still lives in Nevada, Nevada may still be the “home state.” There are exceptions to this general rule. If you are unsure whether Nevada is the right state to handle child custody issues, you should talk to a lawyer.

When a man and woman are married and have a child, the husband is presumed to be the child’s father. When an unmarried couple has a child, paternity can be established through one of the following ways:

Voluntary Declaration of Paternity: If a mother and father agree that the man is the legal father of the child, they can sign a Declaration of Paternity. This is usually signed at the hospital when the baby is born.  Both parents can sign the form later in person at the Office of Vital Records or at the Southern Nevada Health District.

District Attorney Family Support Division: The Division can file a case to establish paternity and child support at no cost to either party. Their office does not handle custody or visitation matters. Visit District Attorney Family Support for more information about the services they provide.

Complaint to Establish Paternity: Parents may file a case with the family court to establish paternity. The judge can determine paternity based on DNA testing or other statutory presumptions. The judge usually has to set child support once paternity is established.  The judge may or may not also decide custody and visitation as part of the case.

Legal Custody (Who Makes Decisions About the Child)
Legal custody refers to the basic responsibility for a child and the parent’s ability to access information and make major decisions that affect the child, including the child’s healthcare, education, and religious upbringing. There are two kinds of legal custody:

Joint Legal Custody:  Judges generally must award both parents joint legal custody so that both parents can make major decisions about the child. 
Sole Legal Custody:  This gives one parent the right make major decisions concerning the child.  This is not ordered very often.

If there is no court order, parents automatically have joint legal custody rights to a child unless a court orders otherwise.

Physical Custody (Where The Child Spends His or Her Time):
Physical custody refers to the amount of time the children spend with each parent. There are three different types of physical custody a judge can order:

Joint Physical Custody: Each parent has the children at least 40% of the time. This amounts to at least 146 days per calendar year. Judges must generally award joint physical custody to both parents unless certain exceptions apply.

Primary Physical Custody: One parent has the children more than 60% of the time during the year. The other parent will have “parenting time” or “visitation.”

Sole Physical Custody: One parent has the children 100% of the time, and the other parent has no visitation or extremely limited (possibly supervised) visitation.  This is not ordered very often.

If there is no court order, parents automatically have joint physical custody rights to a child unless a court orders otherwise.

If parents cannot agree on custody, the judge refers them to the Family Mediation Center to try and come up with their own custody agreement. See Family Mediation Center for more information. If mediation does not result in an agreement, the judge will set a trial and will decide custody based on the “best interest of the children.”

There are many factors that a judge will consider when deciding the best interest of the children. The factors come from NRS 125C.0035 and include:

• The wishes of the child if the child is of sufficient age and capacity to express an intelligent preference.
• Any nomination by a parent or a guardian for the child;
• Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent;
• The level of conflict between the parties;
• The ability of the parents to cooperate to meet the child’s needs;
• The mental and physical health of the parents;
• The nature of the relationship of the child with each parent;
• The physical, developmental and emotional needs of the child;
• The nature of the relationship of the child with each parent;
• The ability of the child to maintain a relationship with any sibling;
• Any history of parental abuse or neglect of the child or a sibling;
• Whether a parent has committed an act of domestic violence against the child, parent of the child, or person residing with the child;
• Whether the parent has committed an act of abduction against the child or a sibling.

A parent can ask the court to change the custody or visitation schedule any time after the final order if circumstances change.

Child Support
Child support is set based on a percentage of the parents “gross monthly income.” Gross monthly income includes pre-tax income from all sources, including employment, tips, overtime, unemployment, and retirement. Each parent will have to provide the judge and the other parent with a financial statement, paystubs, and possibly prior tax returns so each parent’s income can be determined.

If one parent has primary or sole physical custody, the other parent will pay the following in child support:

  • 1 child = 18% of income
  • 2 children = 25% of income
  • 3 children = 29% of income
  • For each additional child, add 2% of income

If the parents share joint physical custody, the court will calculate child support for both parents based on the percentages above. Then, the court will subtract the lower amount from the higher amount, and the parent with the higher income pays the difference.

If you know yours and/or the other parent’s hourly wage and number of hours worked per week, or their gross monthly income, you can use the following worksheets to estimate the amount of child support that a Nevada judge might order in your case:

Parents are expected to pay a minimum of $100/mo per child in child support even if the paying parent has no income. There is also a presumptive maximum amount of child support that can be ordered for higher earning parents.

Child support generally lasts until the child reaches 18, or 19 if the child is still enrolled in high school. Child support can be changed later if needed.

Health Insurance & Medical Expenses
The judge must order one parent (or both) to provide health insurance for the children. The cost of any insurance premiums may affect the total amount of child support paid.

Unreimbursed medical expenses (such as copays and costs not covered by insurance) are typically paid equally by both parents. The judge may order the “30/30 Rule” for unreimbursed medical expenses. The “30/30 Rule” means that if a parent pays a medical expense for a child that is not paid by insurance, that parent must send proof of the expense to the other parent within 30 days of paying. The other parent then has 30 days to reimburse the paying parent ½ the cost.