As a Nevada family lawyer, I often get calls that start like this: “How do I get custody of my children?” or, “Which one of us is going to get custody of the kids in our divorce?” Obviously, one of the most important subjects we handle in family court is that of child custody, and, with good reason, parents frequently rate the issue as their top priority when working with a family attorney. But what many parents may not realize, at least at the beginning of the process, is that “custody” is not a word that will likely appear by itself very often in a divorce decree or family court order. Here in Nevada, as elsewhere, the concept of child custody is actually divided into two distinct subcategories: (1) legal custody and (2) physical custody.
“Legal custody” deals with matters of a child’s upbringing, and the parental decision-making that accompanies raising the child. In short, having “legal custody” means having the right, as a parent, to participate in the healthcare, educational, moral, and religious decisions about how your children will be raised. “Physical custody”, on the other hand, deals with the child’s residential arrangements, as well as what periods of time a child will spend with each respective parent. In any divorce or custody decree, there will be discussion of, and orders pertaining to, both legal and physical custody. It is (at least theoretically) possible for a parent to spend very little time with – in other words, to have very few rights of physical custody to – a child, and yet still have a great deal of input about what school that child attends and what doctors that child sees – in other words, to have extensive legal custody rights.
The twin concepts of legal and physical custody are, in turn, each divided into two broad forms. When we talk about legal custody in Nevada, what is most common is for both parents to have “joint” legal custody of the children, meaning that both parents have equal rights to weigh in on how the children will be raised, educated, etc. However, it is also possible – though exceptionally rare in Nevada – for only one parent to have “sole” legal custody, meaning the exclusive right to make those decisions, regardless of the other (“non-custodial”) parent’s preferences.
When we talk about physical custody in Nevada, we also discuss “joint” versus “sole” physical custody, and, just as with legal custody, sole physical custody is rare – albeit far more common than sole legal custody. However, unlike with legal custody, we further subdivide the concept of joint physical custody into two components: “primary” and “secondary”. In simplest terms, the parent in a joint custodial arrangement who has the greater share of time spent with the children has primary physical custody, while the parent with the lesser share of time has secondary physical custody. In contrast, there is no such thing as “primary” or “secondary” legal custody, which is only joint (50/50) or sole (100/0).
As mentioned above, here in Nevada, joint legal custody is the outcome in virtually every case; terminating a parent’s legal custody rights is an extraordinarily rare event in our state. Accordingly, most family law cases operate under the assumption that legal custody will be joint in nature. Where we as family lawyers tend to spend a great deal of time is instead on the area of physical custody. Determining, for example, which nights and holidays a child will spend with which parent is generally (though not always) a bit more complicated than determining which church or school the child will attend. Furthermore, physical custody determinations play a critical role in the second-most-frequent question I get: Who is going to pay child support to whom, and how much child support will I be paying/getting each month? Legal custody, on the other hand, has nothing to do with the child support calculus. For all of these reasons, physical custody is the attention-seeking question in almost every divorce or custody case, while legal custody tends to be the wallflower of the discussion.
At SmartLaw, we are always ready to answer your Nevada child custody questions, and to do so compassionately, realistically, and efficiently. If you and a partner are splitting up, and there are children involved, regardless of whether you and your partner were ever married or not, provisions for both legal and physical child custody absolutely must be made. We can help. Give us a call today to schedule your consultation.