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Custody

Does Nevada Law Favor a Parent based upon their Gender?

The answer is no. In fact, Nevada law states that preference cannot be given to either parent because they are the mother or the father. The sole consideration of the court in a custody case (or divorce case when custody is also at issue) is the best interest of the child(ren). The factors a Court considers in determining what is in the child(ren)’s best interest are as follows:

NRS 125C.0035(4):

   4.  In determining the best interest of the child, the court shall consider and set forth its specific findings concerning, among other things:

      (a) The wishes of the child if the child is of sufficient age and capacity to form an intelligent preference as to his or her physical custody.

      (b) Any nomination of a guardian for the child by a parent.

      (c) Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent.

      (d) The level of conflict between the parents.

      (e) The ability of the parents to cooperate to meet the needs of the child.

      (f) The mental and physical health of the parents.

      (g) The physical, developmental and emotional needs of the child.

      (h) The nature of the relationship of the child with each parent.

      (i) The ability of the child to maintain a relationship with any sibling.

      (j) Any history of parental abuse or neglect of the child or a sibling of the child.

      (k) 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.

      (l) Whether either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child.

Additionally, if there are no prior custody orders in place, Nevada law was revised in October of 2015 to also incorporate in a preference for joint legal and joint physical custody. See NRS Chapter 125C. The preference applies whether the parties were married or not, which was a significant change in Nevada law at the time. Now, what the word “preference” means versus “presumption” and when this preference applies is often up for debate in custody and divorce cases, and I have found judges to have varying views on this. As the statute change is relatively new, there is unfortunately little case law to give attorney’s guidance on this issue. While it is well accepted among family law practitioners that this preference is pretty strong, it is not automatic. 

I am also often asked about young children, meaning newborns and infants, and the belief there is a preference in favor of the Mother. The answer is the child’s age does not matter as Nevada has eliminated what was referred to as the “tender years” doctrine, which gave the Mother a preference in the first years of a child’s life.

So, in those cases, the same analysis applies, in that the court will consider what is in the child(ren)’s best interest.

Additionally, now that was have entered an era of there being many non-traditional families with two parents of the same sex, it makes sense that the law be and remain gender neutral. 

In sum, when asked about this issue, I always enjoy sharing this joke:

Two parents are fighting for custody of their children in Court. The mother gets up and says to the judge that since she brought the children into this world, she should retain custody of them.

The man also wanted custody of his children, so the judge asked for his justification. After a long silence, the man slowly rose from his chair and replied, “Your Honor, when I put a dollar in a vending machine and a Coke comes out, does the Coke belong to me or the machine?”

If you have any questions in regards to Nevada custody laws, contact the Law Offices of Andriea A. Aden, Esq. today at 775-622-9245 or at [email protected].

By Andriea Aden
July 15, 2019

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