Historically, in divorced involving children, one of the most contentious issues was the “battle” for custody. Movies were made about the drama and hostility, and the news routinely featured stories of parents who once loved each other but in divorce, sought to destroy each other to “win” custody. While it is unlikely that the Nevada Legislature specifically set out to end the “win custody at all costs” mentality, the effect of the October 1, 2015 revisions to Nevada child custody statutes have done just that.
Simply put, the new statutory scheme creates a presumption in favor of Joint Custody timeshare. In Nevada, Joint Custody means that each parent has the children in their custody at least 40% of the time. After nearly two years of seeing the new law being applied by the courts, one thing is very clear: A parent having primary custody of the children is, in most cases, a thing of the past.
In the past, Courts often looked at the historical roles of the parents in caring for the children and would make orders that were more closely aligned to those roles to maintain consistency for the children. Now, most judges have interpreted the new statutes to be a mandate that Joint Custody be awarded to parents unless there are very serious issues of fitness pertaining to one of the parents, or if one of the parents is unable to care for the children (because of work, travel or a disability for example) 146 days out of 365.
The types of fitness issues that could alter the judges’ adherence to the strict letter of the statute are things like domestic violence, drug or alcohol abuse or child abuse. A proven (as opposed to simply alleged) psychological disorder could also be a basis for a court to award primary custody. Other than in cases involving such fitness issues, judges strictly adhere to the Joint Custody mandate set forth in the statutes. This means that even if historically, one parent has provided the vast majority of the care for the children, so long as both parents are fit and have the time, the judge will award each parent at least 40% of the custodial time.
While the practical application of a Joint Custody presumption primarily effects the calculation of child support, the biggest impact of the statute has been to reduce the amount of initial child custody litigation. An experienced lawyer should counsel their clients that absent a proven fitness issue, the most likely outcome of the initial custody determination will be a Joint Custody schedule. Therefore, avoiding the tens of thousands of dollars associated with a custody trial, and the conflict associated therewith, is likely the best choice for every parent. Even the most skilled and aggressive family law practitioner can be defeated by the application of the Nevada’s new Joint Custody statutory presumption.