THE INCREASING DIFFICULTY OF OBTAINING SOLE CUSTODY ORDERS
A legal note from Marshal Willick about the remarkable evolution of “sole custody” orders in Nevada, both as to legal custody and physical custody, and where the law in this area appears to be heading.
While the Nevada Legislature has been intermittent, the appellate courts have been extremely active in making it increasingly difficult to obtain an order of either sole legal custody or sole physical custody of a child. The goal of preservation of the relationship of the child with both parents has swung the pendulum so far in that direction as to subordinate the actual best interest of the child to that goal.
I. BRIEF BACKGROUND EVOLUTION OF LAW GOVERNING CUSTODY
The full history of child custody law in Nevada is beyond the scope of this note, but a few hallmarks are worth noting.
For about a century, Nevada trial and appellate courts maintained a paternalistic and moralistic approach to custody, often starting with a presumption that young children “belonged” with their mothers under the “tender years” doctrine. See Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969) (noting the “universally recognized” principles that the mother is the natural custodian of her young, that the law favors the mother, and that a child requires the advantage and benefit of a mother’s love and devotion).
Courts awarded custody otherwise when they concluded that the mother acted “immorally,” whether the conduct discussed had any impact on the child or not. See, e.g., Sisson v. Sisson, 77 Nev. 478, 367 P.2d 103 (1961) (reversing a child custody award to an “adulterous mother” who had “subjected her children to a shameful, immoral, unwholesome environment of more than a year’s duration,” because “such conduct precluded any conclusion that she was a good mother and a fit and proper person to be awarded custody of the children”); Lantis v. Lantis, 86 Nev. 885, 478 P.2d 163 (1970) (affirming change of custody of an infant from the mother to the father based on the mother’s having left the child with the father for what was intended to be a six-week period while she traveled to California and cohabited with a boyfriend who she intended to marry).
In 1979, the Nevada Legislature formally repealed the “tender years” doctrine, instead enacting by statute the rule that: “In determining custody of a minor child … the sole consideration of the court is the best interest of the child, and no preference may be given to either parent for the sole reason that the parent is the mother or father of the child….” 1979 Nev. Stats. ch. 269, § 2, amending NRS 125.140 (effective May 3, 1979). The language is now set out in NRS 125C.0035(1)&(2).
Seven months later, the Nevada Supreme Court announced that its hundred years of enforcing that doctrine was “nothing more than an expression of a culturally enforced bias favoring rigidly and unrealistically defined societal sex roles” and that the “touchstone of all custody determinations is the best interests of the child; the foundation of these determinations is the particular facts and circumstances of each case. A preference for one parent over the other, solely on the basis of the parent’s sex, has no place in this scheme.” Arnold v. Arnold, 95 Nev. 951, 604 P.2d 109 (1979).
But our trial and appellate courts just could not resist injecting their personal views about moral—and especially sexual—matters into custody determinations for many years thereafter. See, e.g., Daly v. Daly, 102 Nev. 66, 715 P.2d 56 (1986) (termination of parental rights of transsexual affirmed, labeling father a “vestigial parent,” over the dissent’s objection that the majority was “being unnecessarily and impermissibly punitive to the exercise of a medical option we personally find offensive”); see also Marshal Willick, Legal Note Vol. 22 — Parental Sexual Conduct (Aug. 3, 2010), (detailing changing attitudes across decades).
As that legal note made clear, lawyers were still looking for ways to use those never-overruled morality decisions at least as recently as 2010. And as political news of just the last couple years has made clear, there is a vibrant reactionary force in the United States fanatically determined to push society back to values as expressed in the 1950s, if not the 1850s. No reader of this note should fool themself into believing that the collective “we” have evolved past such notions.
Child custody, law, however, had evolved by the 1990s as at least allegedly fixed on seeking the best interest of the child, which our courts repeatedly claimed was “the polestar for judicial decision.” Schwartz v. Schwartz, 107 Nev. 378, 812 P.2d 1268 (1991). The courts often repeat the statutory “sole consideration” language as well. See, e.g., DeNoto v. Hilton, No. 91325-COA, Order of Affirmance (Unpublished Disposition, June 16, 2026).
As discussed below, however, that lip service does not appear consistent with the different policy objectives actually forming the basis of current custody decisions in custody cases.
II. THE EVOLVING STRICT SCRUTINY OF SOLE CUSTODY ORDERS
While this note is not intended to be a comprehensive history of the evolution of Nevada custody law, there were a few milestones in that development worth noting.
Without specific statutory authority, orders for “sole custody” have apparently issued from district courts as a matter of “discretion” since the founding of the state. See In re Foster’s Estate, 47 Nev. 297, 220 P. 734 (1923) (verifying that the subject child could still inherit from the father although awarded to the mother’s “sole custody”). In fact, while records are sparse, it appears that most custody decisions until 1981 were viewed through the lens of “either/or.”
Prior to 1979, NRS 125.140 provided that “[t]he court, in granting a divorce, shall make such disposition of, and provision for, the children, as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children.” That statute was amended in 1979, and the above language was replaced with language stating that (undefined) joint custody could be granted “if it appears to the court that joint custody would be in the best interest of the child ….” That was apparently the only mention of joint custody in the statutes, and no distinction between legal and physical custody was made.
In 1981, the Nevada Legislature approved passage of Senate Bill No. 188 which enlarged provisions for joint custody and created a presumption that joint custody is in the best interests of a minor child “if the parents have agreed to such an award.” In practice, the district court bench ignored the “agreement” requirement and began ordering joint custody in pretty much every case irrespective of the objection of either or both parents. At the same time, NRS 125.490 was created to include a “friendly parent” provision, directing a court to consider, “among other factors, which parent is more likely to allow the child to have frequent associations and a continuing relationship with the noncustodial parent” when awarding custody.
Commentary at the time deeply criticized both of these developments, asserting that it permitted gamesmanship by a parent making a custody claim and then trading it for monetary concessions, and led to psychological damage to children—especially very young children—when they would be better served by “the security and stability of one home.” See, e.g., Roger Wirth & Kathryn Stryker, Joint Custody in Nevada: Time for Reform?, 4 Nev. Fam. L. Rep., Winter, 1989, at 1. They further argued that the practice provided a “cop out for courts” at the expense of children who were left in a perpetual cross-fire of competing and conflicted parents, and that the traditional emphasis on stability and continuity of family environment had been wholesale sacrificed to maintaining a continued relationship between the child and the non-custodial parent, which had been made “paramount.”
Studies cited by those critics claimed that children made subject to joint custody orders between hostile parents were “more emotionally troubled and behaviorally disturbed,” and that joint custody generally produced children who were “more depressed, withdrawn and uncommunicative, had more somatic symptoms and tended to be more aggressive.” They were especially critical, given those studies, of any “presumption” that joint custody is in the best interest of children.
All of those cautions and contrary indicators were ignored. Both “joint legal custody” and “joint physical custody” remained undefined, and were often lumped together. Opinions varied considerably as to what time share even constituted “joint physical custody,” and family court judges across Nevada made their own rules. During this period, I basically made up a description of joint legal custody, touching on information, travel, notice, and school provisions; it was widely copied and repeated, and essentially became the default legal custody provisions for most decrees and child custody orders in Nevada.
In 2009, in Rivero v. Rivero, 125 Nev. 410, 216 P.3d 213 (2009) (Opn. on rehearing), the Nevada Supreme Court defined joint physical custody as any time-share arrangement where each parent has the child at least 40% of the time (146 days a year). At the urging of the Nevada Bar Family Law Section, which appeared as Amicus in the case, and borrowing heavily from California law, the Court for the first time distinguished joint physical custody from alternating sole custody and split custody, defined primary physical custody, and extended that definition to situations in which the other parent “has limited or no visitation.”
Rivero also provided a guiding definition of legal custody—concerning a parent’s “basic legal responsibility for a child and making major decisions regarding the child, including the child’s health, education, and religious upbringing.” 125 Nev. at 420, 216 P.3d at 221.
A few year later, the Nevada Legislature created the structure that has given rise to the circumstances warned of in 1989 and detailed below. In 2015, in the so-called “Parental Rights Protection Act” (AB 263), the legislature set out the explicit, detailed statutory definitions used today. The act completely overhauled the domestic relations laws, moved child custody out of Chapter 125 and into Chapter 125C, and finally codified distinct, standalone statutory definitions for Joint Legal Custody (NRS 125C.002) and Joint Physical Custody (NRS 125C.0025), formalizing the rules that had been building since 1981.
Cementing the 30-year drift in that direction, NRS 125C.0015 established that parents have joint custody by default until otherwise ordered by the court, NRS 125C.002 specifically defined and set provisions for joint legal custody as a “presumption” (decision-making regarding medical, educational, and religious upbringing, and largely replicating the definitions I made up decades earlier), and NRS 125C.0025 specifically defined and set as a “preference” joint physical custody.
The latter statute reiterated the much-ignored direction that a preference for joint custody was present when the parents had agreed to it, adding as a second basis for such an award that it is “preferred” as being in the best interest of a minor child if “[a] parent has demonstrated, or has attempted to demonstrate but has had his or her efforts frustrated by the other parent, an intent to establish a meaningful relationship with the minor child.” The obvious invitation to finger-pointing has not been much discussed in appellate decisions.
While Nevada has a long legal history for how to deal with a “presumption,” the word “preference” has no such pedigree and was left undefined; in practice it has devolved to a presumption despite the lack of that label. The “friendly parent” provision has remained, now embedded in NRS 125C.0035(4)(c), and often given a super-priority over all other factors by some family court judges.
It’s taken some years, but our appellate courts have taken these legislative enactments to their logical conclusions.
In 2023, the Court of Appeals made a sole physical custody order nearly unobtainable, considerably altering the 2009 Rivero inclusion in “primary physical custody” of a custodial order that restricts the other parent to “limited or no visitation.”
In Roe v. Roe, 139 Nev. 163, 535 P.3d 274 (Ct. App. 2023), the Court of Appeals held that a district court abuses its discretion when it “improperly characterize[s] its custodial award as primary physical custody when it [is] in actuality sole physical custody.”
Going further, and finding that neither the Nevada Supreme Court nor the Nevada Legislature ever actually defined “sole custody,” it did so as: “a custodial arrangement where the child resides with only one parent and the noncustodial parent’s parenting time is restricted to no significant in-person parenting time.” Id. at 174, 535 P.3d at 287. “[A] sole physical custody order [results in] the severe restriction on the noncustodial parent’s care, custody, and control of their child [and] requires additional findings and procedure as compared to entry of a joint or primary physical custody order.” Id. Examples of a sole physical custody arrangement are when a district court issues orders “that limit[ ] parenting time to restrictive supervised parenting time, virtual contact, phone calls, letters, texts, a very limited block of hours on a single day of the week, or a similarly restraining parenting time arrangement.” Id.
The Court of Appeals then set out a series of requirements for district courts to actually award sole custody: district courts must make specific written findings beyond the statutory best interest factors to support the entry of an order granting one parent sole physical custody. Id. at 175, 535 P.3d at 288. An entry of sole physical custody requires, among other things, that courts make specific findings either that the noncustodial parent is unfit for the child to live with or that awarding primary physical custody to one parent, thereby allowing significant parenting time with the noncustodial parent, is not in the child’s best interest. Id. Further, after making these express, written findings supporting sole physical custody, Roe requires district courts to consider the “least restrictive parenting time arrangement possible that is in the child’s best interest” and, if less restrictive alternatives to what the court adopts are proposed or considered, the court “must provide an explanation as to how the best interest of the child[ren] is served by the greater restriction[s].” Id. at 176, 535 P.3d at 288.
In practice, the number and height of those hurdles has made it virtually impossible to award sole physical to one parent, almost regardless of how much the other parent is defective, absent, or hazardous to the mental or physical health of the child. In family law, much evidence is slight, or conflicting. Judges tend to err on the side of caution, and the tests and requirements imposed make it much simpler and easier—and much less reversible—to simply enter an award of joint custody, or at most primary with enough of a time share to the other parent to avoid being reversed for making a “hidden” sole custody award, even when it might actually benefit the child physically, developmentally, or psychologically to have less or no contact with that other parent.
Orders for sole legal custody have followed the same trajectory. In 2009, Rivero set up a methodology where upon conflict a district court can make an allocation of decision-making authority within a joint-legal-custody framework, under which parents need not have equal decision-making power so long as both remain legal custodians. See Rivero v. Rivero, 125 Nev. 410, 420-21, 216 P.3d 213, 221-22 (2009), overruled in part by Romano v. Romano, 138 Nev. 1, 501 P.3d 980.
So district courts are effectively directed to keep both parents involved in decision-making for a child, even where one of those parents suffers from diagnosed mental health problems making cooperation with that parent difficult to impossible, Ocasio v. Ocasio, No. 87589-COA & No. 87695-COA, Order of Affirmance (Unpublished Disposition, August 20, 2026), or when a parent’s conduct has already resulted in an order providing the other parent with decision-making authority of various “domains” of the child’s life such as medical or school choice because the subject parent’s “conduct at school and with the pediatrician became so combative and disruptive that she was removed from campus and subject to a protection order obtained by the pediatrician’s office, resulting in [the child’s] loss of his pediatrician; her scathing communications about vaccines, masking, and sex education undermined relationships with school officials and healthcare providers; and her paranoia about [the custodial parent] and her statements to [the child] raised serious concerns about her judgment in those high-impact domains. The district court concluded that continued shared decision-making in those areas risked further disruption of [the child’s] schooling and healthcare.” Backman v. Gelbman, No. 88482-COA & No. 91070-COA, Order of Affirmance (Unpublished Disposition, June 16, 2026).
III. THE SUBORDINATION OF “THE BEST INTEREST OF THE CHILD”
Bluntly, how can it possibly be in the “best interest of the child” to be in the physical custody of a parent suffering from psychological or other impairments rendering that person marginally competent or functional, or a danger to self and others? How could it possibly be in a child’s best interest to permit such an impaired individual to have decision-making responsibility for a child’s welfare in any “domain”?
Unless the statutory declarations are simply taken as self-proving, the answer is that any such order is not “in the best interest of the child,” any more than forcing significant contact with an impaired, incompetent, or dangerous non-parent would be.
At least one district court judge has picked up on the altered directives, from serving the best interest of the child to obsessive preoccupation with maintaining contact with both parents and other imperatives. As part of one decision, the district court noted that “appellate decisions routinely place a child’s best interest secondary to other interests, despite proclaiming a policy otherwise.” Nester v. Dist. Court (Gamble), ___ Nev. __, __ P.3d __ (141 Nev. Adv. Op. 4, Jan. 30, 2025) at fn. 4. The Court of Appeals strongly disagreed, replying in its Opinion, with great umbrage, “This is incorrect, and the district court’s categorical remark is inappropriate. . . .” Id.
The problem is that the district court was correct. A family court faced with the above list of time-consuming and difficult obstacles to making an order of sole legal or physical custody will inevitably provide both physical custody and decision-making authority to dysfunctional parents unable or unwilling to actually look after the best interest of the child due to their own agendas or inabilities and—equally inevitably—the children involved will be harmed by those decisions.
If that is the societal, or legislative, or judicial, choice of priorities, then so be it, but it is hypocrisy to demand that district courts obsessively fixate on ensuring a continued physical and legal custodial relationship between the child and the non-custodial parent, while still pretending and declaring either that “the sole consideration of the court is the best interest of the child” or that the best interest of the child is “the polestar for judicial decision.”
Which is what has brought us to the current state, where service of the best interest of the child is still the announced policy, but the reality of both legislative and judicial directives leads to a steady stream of decisions leaving children in custodial relationships that do not maximize their physical, educational, and psychological well being, but sacrifice those goals in service to maintaining the children’s “relationship” with parents who objectively should have neither physical nor legal custody of anyone.
At this point, the pendulum has swung so far to “protecting the rights” of the non-custodial parent that the child’s best interest has become an afterthought. It is unclear how many children have to be limited, injured, or permanently damaged in some way by the forced association with negative influences on their lives and development to cause a recalculation of relative priorities.
IV. CONCLUSIONS
For 40 years, since 1981, Nevada law has driven increasingly away from a focus on the best interest on the child toward protection and maintenance of the relationship of the child with both parents—no matter how dysfunctional, destructive, or harmful to the child’s actual best interests those parents might be.
Nearly 40 years ago, commentators noted that the best interest of the child was being subordinated to different policy objectives. That has continued and accelerated, and harm to children’s lives, development, and adjustment has resulted accordingly.
The harsh truth is that it is in the best interest of some children to have as little as possible to do with some parents. Until and unless our courts exhibit the courage to acknowledge that fact and protect children accordingly, the collective “we” will do an untold amount of damage to innocent children in pursuit of other policy objectives.
V. QUOTES OF THE ISSUE
“Laws are like sausages. It’s better not to see them being made.” Otto von Bismarck (1815-1898) (attrib.)
“Hypocrisy, the only evil that walks
Invisible, except to God alone.” J. Milton, Paradise Lost, book. 3., line 683 (1667).
“Lawyers, I suppose, were children once.” Charles Lamb.
“I and the public know.
What all schoolchildren learn.
Those to whom evil is done.
Do evil in return.”
W.H. Auden
“A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” Sir Walter Scott, Guy Mannering, ch. 37 (1815).
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- Vol. 82 — The Evolution of Sole Custody in Nevada - September 15, 2026
- New Cases Added to MLAW: 5 COA Unpublished: Ortega, In the Matter of the Joint Petition of Lynn and John McKendry, Wolfe, Grigalanz, and Adams - September 9, 2026