Nevada § 125C.0035 - Best interests of child: Joint physical custody; preferences; presumptions when court determines parent or person seeking custody is perpetrator of domestic violence or has committed act of abduction against child or any other child

§ 125C.0035. Best interests of child: Joint physical custody; preferences; presumptions when court determines parent or person seeking custody is perpetrator of domestic violence or has committed act of abduction against child or any other child

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 .