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EspañolWhat are the steps to file for custody?
Before filing in court for custody, you may want to consider drawing up an out-of-court agreement with the other parent. Usually, parents will have to be flexible when it comes to custody and visitation for the benefit of the child. Often, parents who fight for sole custody will litigate in court for months or even years and end up with some sort of joint custody agreement after settlement or trial.
However, sometimes fighting for sole custody is necessary because you can’t agree with the other parent, the other parent is not allowing contact, or you fear for your child’s well-being. Especially with domestic violence, many abusers will try to keep power and control over the victim-survivor through the child, so joint custody isn’t recommended due to the power difference in the relationship.
If you decide to file in court for custody, the process usually looks similar to this:
1. File for custody. You may file in the family court or a court of a different name that hears custody cases. Generally, you will file in the county where the child lives, and, depending on the circumstances, you may be able to request an emergency or temporary order as part of your petition. The exact petition you file may depend on whether you are married or not:
- If you are a married parent who is also filing for divorce, you can usually include the custody petition within the divorce process.
- If you are a married parent who is not filing for divorce, you can file for custody on its own in the county where the child has been living for at least six months.
- If you are an unmarried parent, you can also seek custody in court. However, if paternity hasn’t been established, which means that the father hasn’t been legally recognized, then this process will likely have to happen first or as part of the custody process.
The forms you will need to fill out may be different for each county. Contact your local courthouse to find out exactly how to file in your county. See What information will I need to give when I file for custody? to learn what you will need to include in the forms when filing.
2. Prepare for the custody process
Custody cases are complicated, so you may want to consider getting a lawyer if you can. Our NV Finding a Lawyer page can help you find legal help in your area. If you can hire an attorney, you can use this list of questions as your guide when deciding who to hire. If you are representing yourself in court, you can learn about the court process and how to present evidence in our Preparing for Court – By Yourself section.
During the court process, you will try to prove why you should have your child’s custody. When preparing for court, you can gather evidence that helps make your case as to why you should have custody of the child. This process should be directed by the factors the law says a judge should consider when deciding custody. You can see How will a judge make a decision about custody? for more information. It’s important to consider that the judge will be focused on what is in the best interest of your child and many states consider that this is to have a relationship with both parents.
Keep in mind that custody court cases often take a long time. Going through this process can be emotionally and financially draining. Do what you can to take care of yourself. If you have experienced domestic violence, you may want to contact a local domestic violence organization. An advocate there may be able to help you navigate the process and plan for your safety.
3. Prepare for trial
There will be one or more hearings, including a trial, if you and the other parent cannot reach an agreement by yourselves or through mediation. During trial, you or your attorney will be able to present evidence and cross-examine the other party to help the judge make a decision.
If you are a victim of domestic violence, you can plan for your safety while in court. Also, you can ask the judge to include protections in your custody and visitation orders. For example, you can ask for some of the following terms:
- communication between the parents must be in writing;
- communication can only be related to the child; and
- a neutral third party should be present at the exchange of the child or should be the one to drop off and pick up the child.
To avoid future conflicts, you should also try to be as specific as possible about how you and the other parent will make important decisions; who will have the child on holidays, birthdays, etc.; and when and where you and the other parent will pick up and drop off the child.
4. Options if you lose the custody case
If you are unhappy with the judge’s order, there may be a couple of options that could be filed immediately - for example:
- A motion for reconsideration asks the judge to decide differently based on the law or new evidence.
- An appeal moves the case to a higher court and asks that court to review the lower court’s decision due to a judge’s error.
There could also be an option that you may take in the future, but not immediately after the judge gives the order. A motion or petition to change (modify) the order could be filed later on if a “substantial change of circumstances” happens. A few examples of substantial changes in circumstances could be if the other parent gets sent to jail or gets charged with child abuse or neglect; if you move or the other parent moves to another state; or if your child’s needs significantly change.
To find out more about how the process works in your area, please contact a lawyer. Please visit our NV Finding a Lawyer page to find legal help in your area. You can also watch our Custody, Visitation, and Child Support videos where we explain the process. The videos include information about the different types of custody and visitation, related legal concepts that a judge will consider, child support, and moving out of state with your child.
What information will I need to give when I file for custody?
When you file for custody, you will need to give the following information:
- your child’s current address or, if your child is not living with you, where your child is living if you know;
- any addresses where your child lived during the last five years;
- the names and current addresses of anyone your child lived with during the last five years;
- the names and addresses of anyone who has physical custody of your child or claims rights of legal custody, physical custody, or visitation;
- the court name, case number, and date of any older custody or visitation order or case that you had for your child; and
- information about any other court case you know of that could affect custody- for example, a case about an order for protection against domestic violence, termination of parental rights, or adoption.1
However, if it’s not safe for you to give your address or other personal information, you can ask to keep your information confidential as explained in Can I keep my address confidential?
1 N.R.S. § 125A.385(1)
Can I keep my address confidential?
You can ask to keep your identifying information confidential if giving it to the abuser or another person would put you or your child in danger. Then, the court would keep your information private (sealed). This means the court would not reveal your address to the abuser or the public.1
However, the judge could order you to reveal your address if s/he has a hearing, considers any health and safety concerns, and then decides that giving out (disclosing) your address is “in the interest of justice.”1
1 N.R.S. § 125A.385(5)
How will the judge make a decision about custody?
The judge will decide about legal and physical custody based on what s/he believes is in the best interest of your child.1
When it comes to physical custody, the judge will usually prefer to give primary physical custody or joint physical custody to the parents, as opposed to other relatives, if this is in the best interest of your child.2 The judge will not automatically give preference to the mother or father just based on gender.3
To decide what is in your child’s best interest, the judge will look at the following factors:
- your child’s wishes if s/he is of “sufficient age and capacity to form an intelligent preference” about where s/he will live;
- whether you or the other parent named a guardian for your child;
- which parent is more likely to allow your child to have frequent contact and a continuing relationship with the non-custodial parent;
- the level of conflict between you and the other parent;
- the ability of you and the other parent to cooperate to meet your child’s needs;
- the mental and physical health of both parents;
- your child’s physical, developmental, and emotional needs;
- the quality of your child’s relationships with you and the other parent;
- the ability of your child to keep relationships with any siblings;
- any history of abuse or neglect against this child or his/her sibling;
- if either parent or anyone else seeking physical custody committed domestic violence against your child, the other parent, or anyone else living with the child; and
- whether either parent abducted this child or any other child.4
For more information on how domestic violence affects a judge’s decision about custody, go to Can a parent who committed violence get physical custody?5
1 N.R.S. §§ 125C.002; 125C.0025; 125C.003; 125C.0035
2 N.R.S. §§ 125C.0035(1); 125C.0035(3)
3 N.R.S. § 125C.0035(2)
4 N.R.S. § 125C.0035(4)
5 N.R.S. § 125C.0035(5)
Will the judge always give joint custody?
The Nevada law prefers for both parents to continue having relationships with the child after the parents separate, which includes frequent contact with the child and sharing parenting rights and responsibilities.1 This preference means that the judge will often give parents joint custody, but not always.2
To see when the judge will give joint legal custody, go to When will the judge give joint legal custody? To see when the judge will give joint physical custody, go to When will the judge give joint physical custody?
1 N.R.S. § 125C.001
2 N.R.S. §§ 125C.002; 125C.0025; 125C.003; 125C.0035
When will the judge give joint legal custody?
The judge will order joint legal custody if s/he believes it is in your child’s best interest. The judge will assume that joint legal custody is in your child’s best interest if:
- both parents agree to it; or
- one parent asks for it and shows that s/he intends to have a meaningful relationship with the child or s/he tried to have a meaningful relationship with the child but the other parent didn’t allow it.1
The judge can grant joint legal custody to both parents while giving sole or primary physical custody to just one parent.2 If you have joint legal custody, even if your child lives with you full-time, the other parent can still have a right to make major decisions about your child’s life.3
1 N.R.S. § 125C.002(1)
2 N.R.S. § 125C.002(2)
3 See Rivero v. Rivero, 216 P.3d 213 (2009)
When will the judge give joint physical custody?
A judge will order joint physical custody if s/he believes it is in your child’s best interest. The judge will assume that joint physical custody is in your child’s best interest if:
- both parents agree to it; or
- one parent asks for it and shows that s/he intends to have a meaningful relationship with the child or s/he tried to have a meaningful relationship with the child but the other parent didn’t allow it.1
However, if the other parent committed domestic violence against you, the child, or someone else who lives with the child, the judge will not assume that the abuser should have joint physical custody.2 Read Can a parent who committed violence get physical custody? to learn more.
There are some other situations when the judge will not assume that joint physical custody is in your child’s best interest and, instead, will give primary physical custody to just one parent.3 You can read about these situations in When will the judge give primary physical custody to one parent?
The judge can order an investigation to help decide if joint physical custody is appropriate.4
1 N.R.S. § 125C.0025(1)
2 N.R.S. § 125C.0035(1)(c)
3 N.R.S. § 125C.003
4 N.R.S. § 125C.0025(2)
When will the judge give primary physical custody to one parent?
The judge can give primary physical custody to just one parent if the judge believes that joint physical custody is not in your child’s best interest.1
The judge will assume that joint physical custody is not in your child’s best interest, and instead, the judge can give you primary physical custody in the following situations:
- the other parent cannot adequately care for your child for at least 146 days during the year;2 or
- the other parent committed domestic violence against the child, a parent of the child, or any other person living with the child; however, the abusive parent can present evidence and try to change the judge’s mind.3
In addition, if you are the child’s mother and you were not married when your child was born, the judge can give you primary physical custody if:
- you did not marry the father after your child was born; and
- either:
- paternity was never legally established; or
- the father knew he was the father, but he “abandoned” the child.4
If you are the child’s father and you were not married to the mother when your child was born, the judge can give you primary physical custody if:
- the mother “abandoned” the child; and
- you provided sole care and custody of the child in her absence.5
Note: For purposes of child custody, the term abandoned means that for a continuous period of six months or more, the parent failed to provide substantial personal and economic support to the child or chose not to have any meaningful relationship with the child.6
1 N.R.S. § 125C.003(1)
2 N.R.S. § 125C.003(1)(a)
3 N.R.S. § 125C.003(1)(c)
4 N.R.S. §§ 125C.003(1)(b); 125.003(2)(a)
5 N.R.S. §§ 125C.003(1)(b); 125.003(2)(b)
6 N.R.S. § 125C.003(3)(a)
If I have moved out of the home where the other parent and my children currently live, will this hurt my chances of gaining custody?
If you leave without your children and the other parent has been doing a good job in caring for the children on his/her own since you left, the judge might consider this as a factor when making a custody decision. Some judges might also view leaving as evidence that you are putting other priorities before your children. However, a judge may also consider the reason why you left. For example, if you left to protect yourself from further physical abuse, this is important to prove in court since judges are supposed to assume that an abuser shouldn’t get custody. See Can a parent who committed violence get physical custody? for more information.
As with all custody issues, we recommend that you talk to a lawyer about this. To find a lawyer or legal aid program in your area, please visit the NV Finding a Lawyer page.
Do I need a lawyer?
Although you do not need a lawyer to file for custody, it is highly recommended that you get a lawyer if you can, especially if the other parent has one. If you cannot afford a lawyer, you may be able to find sources of free or low-cost legal help on our NV Finding a Lawyer page.
If you plan on filing for custody on your own, you can start by calling or visiting the civil clerk at your courthouse for more information about the paperwork you will need to file. To find the contact information of a courthouse in your area, go to our NV Courthouse Locations page.
At least one county courthouse in Nevada also has a self-help center that can help you with your child custody paperwork. In Clark County, you can contact the Family Law Self Help Center by phone at (702) 455-1500 or go to their website.
If you live outside of these counties, check with your courthouse to see if they have a self-help center, too. Even if you plan on representing yourself, you might want to consider having a lawyer review your papers before you file them.
If you are going to be in court without a lawyer, our Preparing for Court – By Yourself section may be useful to you.
Can I change the state where the case is being heard?
For information on trying to modify a final Nevada custody order in another state or an out-of-state custody order in Nevada, go to our general Changing a final custody order page. There you can read what factors a judge will typically consider when deciding whether or not to transfer your case to a new state.
This is often complicated and, as with all custody issues, we recommend that you talk to a lawyer about it. To find legal resources in Nevada, go to our NV Finding a Lawyer page. To find legal resources in a state other than Nevada, go to our Finding a Lawyer page and select your state from the drop-down menu.
Can I file for custody in Nevada? Is Nevada my child’s “home state”?
You can usually only file for custody in Nevada if Nevada is your child’s “home state.” Note: There are exceptions to the “home state rule” rule. Nevada will likely qualify as your child’s home state if:
- your child has lived in Nevada with a parent or person acting as a parent for the past 6 consecutive months; (Note: If your child left the state less than 6 months ago, you may still be able to file in Nevada); or
- your child is less than six months old but has lived in Nevada since birth.1
Leaving Nevada for a short period of time will not change the status as your child’s home state.
If you and your child recently moved from Nevada to another state, generally you cannot file for custody in that new state until you have lived there for at least six months. Until then, you or the other parent can start a custody action in Nevada, as long as your child has most recently lived there for at least six months. There are some exceptions.
If you and your child recently moved to Nevada from another state, generally you cannot file for custody in Nevada until you have lived there for at least six months.1 Until then, you or the other parent can start a custody action the state you moved from, as long as your child has most recently lived there for at least six months. There are some exceptions.
1 N.R.S. §§ 125A.085, 125A.305(1)(a)
Are there exceptions to the "home state rule?"
You can file for custody in Nevada if either there is no other state that can qualify as the home state (for example, if the child has not lived in any other state for the past 6 months) or if the child does have a home state and:
- that state’s court believes that Nevada is the more appropriate state to hear the custody case; and
- the child and at least one of the child’s parents or a person acting as a parent have a significant connection with Nevada aside from just being in the state; and
- there is a lot of evidence available in Nevada concerning the child’s care, personal relationships, etc.1
Figuring out if you qualify for one of these exceptions can be complicated. If you think this law might apply to your situation, it might be best to talk to a lawyer in both Nevada and in the other state that you recently lived in.
For a list of legal resources, please see our NV Finding a Lawyer page.
Also, even if you have not lived in Nevada for six months, you might be able to apply for temporary emergency jurisdiction (power to hear the custody case). Nevada could have temporary emergency jurisdiction if:
- the child is present in the state; and
- the child has been abandoned, or
- it is necessary in an emergency to protect the child because either the child, a sibling, or a parent of the child is subjected to or threatened with mistreatment or abuse.2
1 N.R.S. §125A.305(1)(b)
2 N.R.S. §125A.335(1)
