NRS § 125C.0035 – Best Interest of the Child

Nevada Revised Statute § 125C.0035 states that “the best interest of the child” is the only consideration judges must have when resolving child custody disputes. The parents’ genders are irrelevant.

NRS 125C.0035.  1. In any action for determining physical custody of a minor child, the sole consideration of the court is the best interest of the child. If it appears to the court that joint physical custody would be in the best interest of the child, the court may grant physical custody to the parties jointly.

2. Preference must not be given to either parent for the sole reason that the parent is the mother or the father of the child.

3. The court shall award physical custody in the following order of preference unless in a particular case the best interest of the child requires otherwise:
(a) To both parents jointly pursuant to NRS 125C.0025 or to either parent pursuant to NRS 125C.003. If the court does not enter an order awarding joint physical custody of a child after either parent has applied for joint physical custody, the court shall state in its decision the reason for its denial of the parent’s application.
(b) To a person or persons in whose home the child has been living and where the child has had a wholesome and stable environment.
(c) To any person related within the fifth degree of consanguinity to the child whom the court finds suitable and able to provide proper care and guidance for the child, regardless of whether the relative resides within this State.
(d) To any other person or persons whom the court finds suitable and able to provide proper care and guidance for the child.

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.

5. Except as otherwise provided in subsection 6 or NRS 125C.210, a determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking physical custody has engaged in one or more acts of domestic violence against the child, a parent of the child or any other person residing with the child creates a rebuttable presumption that sole or joint physical custody of the child by the perpetrator of the domestic violence is not in the best interest of the child. Upon making such a determination, the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of domestic violence occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other victim of domestic violence who resided with the child.

6. If after an evidentiary hearing held pursuant to subsection 5 the court determines that each party has engaged in acts of domestic violence, it shall, if possible, then determine which person was the primary physical aggressor. In determining which party was the primary physical aggressor for the purposes of this section, the court shall consider:
(a) All prior acts of domestic violence involving either party;
(b) The relative severity of the injuries, if any, inflicted upon the persons involved in those prior acts of domestic violence;
(c) The likelihood of future injury;
(d) Whether, during the prior acts, one of the parties acted in self-defense; and
(e) Any other factors which the court deems relevant to the determination.
In such a case, if it is not possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 5 applies to both parties. If it is possible for the court to determine which party is the primary physical aggressor, the presumption created pursuant to subsection 5 applies only to the party determined by the court to be the primary physical aggressor.

7. A determination by the court after an evidentiary hearing and finding by clear and convincing evidence that either parent or any other person seeking physical custody has committed any act of abduction against the child or any other child creates a rebuttable presumption that sole or joint physical custody or unsupervised visitation of the child by the perpetrator of the abduction is not in the best interest of the child. If the parent or other person seeking physical custody does not rebut the presumption, the court shall not enter an order for sole or joint physical custody or unsupervised visitation of the child by the perpetrator and the court shall set forth:
(a) Findings of fact that support the determination that one or more acts of abduction occurred; and
(b) Findings that the custody or visitation arrangement ordered by the court adequately protects the child and the parent or other person from whom the child was abducted.

8. For the purposes of subsection 7, any of the following acts constitute conclusive evidence that an act of abduction occurred:
(a) A conviction of the defendant of any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct;
(b) A plea of guilty or nolo contendere by the defendant to any violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct; or
(c) An admission by the defendant to the court of the facts contained in the charging document alleging a violation of NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.

9. If, after a court enters a final order concerning physical custody of the child, a magistrate determines there is probable cause to believe that an act of abduction has been committed against the child or any other child and that a person who has been awarded sole or joint physical custody or unsupervised visitation of the child has committed the act, the court shall, upon a motion to modify the order concerning physical custody, reconsider the previous order concerning physical custody pursuant to subsections 7 and 8.
10. As used in this section:
(a) “Abduction” means the commission of an act described in NRS 200.310 to 200.340, inclusive, or 200.359 or a law of any other jurisdiction that prohibits the same or similar conduct.
(b) “Domestic violence” means the commission of any act described in NRS 33.018.

Legal Analysis

NRS 125C.0035 requires courts to consider only the “best interest of the child” when deciding on physical child custody. The best interest of the child involves various factors, such as:

1. the child’s wishes (if the child is old enough to form an intelligent preference)
2. the child’s needs
3. which parent will be more present
4. the child’s relationship with each parent
5. the ability of the child to maintain a sibling relationship
6. each parent’s health (mental and physical)
7. each parent’s history of child abuse, domestic violence and/or child abduction
8. the parents’ ability to co-parent and the conflict level between them

Courts do not consider the gender of the parents when determining custody. All things being equal, the court’s preference is to award joint physical custody to both parents.

Example: Paul and Dina both want custody of their eight-year-old daughter Ann. The court will likely grant Paul and Dina joint physical custody unless they can show that it is not in Ann’s best interest.

For instance if Dina can show that Paul is a drug addict, the court would probably grant Dina sole physical custody until if and when Paul recovers.

If the court holds a hearing and finds by clear and convincing evidence that a parent engaged in domestic violence against

• the child,
• other parent, or
• other person living with the child,

then the court will presume that it is not in the child’s best interest for that parent to have physical custody. Though that parent will have the opportunity to rebut that presumption.¹

See our related articles, Visitation rights, Father’s rights, and How a court determines child support.

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Legal References