Best Interests of the Child

Updated: Aug 25, 2019

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Today I want to present the best interests factors. These are the factors that a family court judge must go through and analyze in order to determine whether a parent or parents should get physical custody over their children or child. (but see alternatives to a contested custody action). These factors are listed in the Nevada Revised Statutes 125C.0035 subsection four, and they are A through L. A through L. So, A, B, C, D, E, F, G, H, I, J, K, L. That’s twelve factors that are listed. Now the statute also says that the court can look at any other factors in order to determine best interests, not just those twelve. But I’m gonna go through those twelve because the court must go through every single one of them, in every case involving physical custody. And the reason we know this is that Nevada supreme court in the Rivero decision, Rivero versus Rivero, and again in the Bluestein decision, and in many, many other decisions have stated again and again that the district court level judge must go through these factors when determining physical custody.

So I will go through each one briefly. The first factor (A) is the wishes of the child. What can we take from that, being the first one? It would seem like, because it’s first, it must be the most important factor. And indeed, a lot of judges give a lot of weight to the wishes of the child. However, the child has to be of suitable age and discretion in order for their wishes to count. Now, I know of no judge that would put the child on the witness stand to be direct and cross-examined. That’s considered child abuse by most of the judges. So that never happens. Imagine a little child getting up on a witness stand and being asked questions that will help determine which parent that child is supposed to go with. That just can’t happen. If anyone has seen the movie “Catch Me If You Can”, based on the true story of Frank Abagnale, the guy who faked being a pilot when he was 16 years old and flew all over the world for years and then he did check kiting and other check frauds and for many years made a lot of money, pretended to be a doctor, pretended to a lawyer after he was done being a pilot. Anyway, in the movie, if you watch the movie, he cites being forced to decide between his parents as the reason he left home and enter this life of crime and pretended to be other people since he was 16 years old. So it is not considered a good idea to ask a child what parent they want to live with.

So how do we determine this factor? Well, what the judges usually do in most cases is they will send the child to the Family Mediation Center to be interviewed by a specialist. And the specialist has standard questions unless the judge asks for specific questions to be asked, standard questions such as how would you rate your relationship with one parent, with the mom how would you rate your relationship with your dad, how would you rate your relationships with your siblings and so forth, and try to get the child to explain their reasoning. And then the specialist will write a report that the judge will get to look at. This is considered child hearsay and most judges allow it because the child is made unavailable to testify, so therefore, hearsay is the only way that this evidence can get in and it has to get in since it is the first factor. But if a child is too young then they were not going to have to be able to articulate and intelligent reason. If they're too susceptible to parental influence regardless of age then, the report might be suspect. There are cases where a child may have mental disabilities or mental conditions such as Aspberger's or some other autism spectrum disorder, which might make them very susceptible to influence by whoever the last parent they were with. You know, whoever the last parent was could have could have taken them to the interview and suggested certain things that would make them say certain things to the specialist. So there's a lot of things to be watchful for. There's a concept called parental alienation. That's where one parent does something to undermine the other parent with the child. For instance, one parent may spoil the child, making the kid like that parent better than the disciplinarian parent. That's a form of parental alienation. Another form of parental alienation would be threatening the child all the time ... scaring the child into obedience such that that child is so afraid to go against the parent. That child could lie about the other parent. The other parent is not going to beat them or take away privileges. So he'll lie about the good parent in favor of the bad parent. It’s the form of parent alienation that judges have to be watchful for. This is one reason why we can't just solely rely on one factor such as the wishes of the child. We have to look at all the factors in total. And the judge has to come up with a reasoned understanding of the family dynamics.

Which brings us to the second factor which is the nomination of the Guardian of the child, which is usually the parent. So in child custody cases both parents are usually nominating themselves to be primary custodian or joint custodian or what have you. You can listen to my last podcast or watch my last video where I discussed the different types of custody.

Anyway, the nomination of the Guardian is usually not very helpful to the judge because the parents are nominating themselves. However, if one parent nominated the other parent in the past and now wants to rescind that nomination, that could be a factor. What has changed so significantly that the parent is now saying: “I rescind my nomination”?

The third factor C is which parent is likely to allow frequent associations with the child to the non-custodial parent. Non-custodial parent is the visiting parent or the parent that is not having custody at any given time. So if a parent is seeking primary physical custody or wants to maintain primary physical custody, then that parent has to ensure that the other parent gets their visitation time or at least have the opportunity to have it. Presenting the other parents from visiting with the child, absent very good reason, can significantly damage a parent’s chances of maintaining custody or acquiring it in the first place. And I see this so often a parent will withhold a child from the other parent’s rightful visitation time for really no good reason. “Oh, my car broke down” or “Oh, I don't like how the other parent is treating a kid” or “My kids are kid is telling us the bad parent is bad, doesn't want to be over there and I can't force my kid to go and I won't force him to go.” Well, usually those aren’t good reasons. It might be a good reason if the kid is a teenager, like 16, 17 and asserting physical dominance over a parent and says: “I’m not going to see my other parent. You can't force me.” Well, that's something you would have to bring the judge’s attention because certainly that could mean that there could be a need for counseling and some healing going on in that family. But anyway, it just means a parent has to create the opportunity for the other parent to have frequent invitation. If the kid is absolutely not going, then that should not be the parent’s fault. The child is the one resisting it, but if it's the parents fault, the child is very young and really shouldn't have any say, and that parent is withholding the child from the other parent, that is a factor that can weigh heavily against the parent seeking custody. If they are doing that.

Alright.That brings us to factor D which is the level of conflict amongst the parents. It is considered that if there's a high level of conflict between the parents and to always threatening each other, fighting, yelling, screaming. And this dynamic, this conflict is affecting the children. The children are around it. They feel it. They hear it. They sense it. That is considered not in the best interest of the children. And usually when the parents have joint physical custody, they are sharing 50-50, or close to it, timeshare, and they're having that level of animosity towards each other, then perhaps one parent should have primary custody and the other parent not be in the picture as much because it might reduce the level of conflict. So if the level of conflict is high because they’re constantly seeing each other and dealing with each other because they're sharing the children, then perhaps it would be in the best interest of the child to be more with one parent than with the other to reduce that conflict. That's how that factor can play in. Also the level of conflict of one parent is creating all the conflict and the other parent is just being very nice and mellow. Well the parent is creating all a conflict could have their parental rights to some degree stripped of them because they're creating so much tension and problem for the child. That goes to the prior factor where we talked about parents alienation, spoiling the child and so forth. Depriving the other parent of visitation creates conflict so a lot of these factors go hand-in-hand. They have to be sort of decided together, the facts that you present at trial could implicate multiple factors. Any one fact could implicate several factors.

Alright so let's go on to the next factor which is the ability of the parents to cooperate to meet the needs of the child or children. This sounds a lot like the level of conflict. Obviously there's high level of conflict and they're not meeting the needs of their children, at least emotionally, but this factor also can implicate financial ability, mental stability. Many, many different little facts can come into the ability to cooperate to meet the needs of the child. If one parent has a lot of money and time on their hands to watch the child. The other parent is struggling to make ends meet and doesn't have a lot of time on their hands filled with a child, Then perhaps the wealthier parent that has more time should have more time with the child and the parent that is struggling. But it's the ability to cooperate to meet the need. So if the parents are really cooperating well with one another, then perhaps joint physical custody is a is a better thing than one parent having primary custody. So this is could also be an opposite factor to the prior factor where there were a lot of conflict, which brings us to the next factor: the mental and physical and health of the parents.

Again this ties into other factors if one parent is physically unhealthy and has trouble keeping up with a three-year-old. Then maybe what should be a factor in that parents having custody of the child likewise if they're mentally unable. Maybe that parent has a guardian because they got dementia or some other mental handicap or mental condition. Then maybe the exposure of that child to that parent should be reduced or maybe there needs to be a supervisor when that parent has a timeshare with the child and all of that can factor into which parent should have primary custody or whether there should be joint custody. The mental and physical ability of the parents.

Factor G, the next one is the physical developmental and emotional needs of the child. Which parent is more able to meet all of those needs? So again this plays into the prior factors. If a parent is very physically able to meet the physical develop mental and emotional needs of the child and the other parent is not for some reason, then that parent has the upper hand on that factor in court. What might cause a parent to not be able to meet the physical, developmental or emotional needs of the child? Well, if that parent has no common sense with regard to how to raise a child and yells at the child for no good reason, or punishes a child for no good reason, then that parent is actually being emotionally abusive. And certainly if the parent is not nourishing the child well with food, diet perhaps, then the physical needs of the child aren’t being met. Developmental— if the child should be going to after-school activities for exercise or what have you. And one parent is just too lazy and doesn't want to take the kid even though it would be in the best interest of the child to go. And the other parent is taking the child … that could be a factor.

So the next factor is Factor H which is the nature of the relationship that the child has with each parent. This can come from the child individual report, it can come from the testimony of the parents, it can come from testimony of other witnesses at trial. The nature of the relationship: simply how did they get along? How did the child get along with the parents? Does the child like the parent or parents? Why or why not? Does the nature of the relationship impact what type of custody the parent should have? It’s important for a judge to look at this because if a relationship is really bad with one parent and really good with the other, there could be a lot of reasons for that. It could be that the relationship is so-called really good is because that parent is way too permissive and there has been some parental alienation going on. Or it could be that the parent that the child doesn’t like very much is terrible all the time, ignores them, ignores the child when the child is at that parent’s house, mistreats the child and so forth.

Alright so the next the next factor, factor I, is the relationship, that child, the child in question in the custody case has with siblings. It doesn’t have to be full siblings. It could be half-siblings. So if the child has a really strong relationship with half-siblings at one parents house and there are no other siblings at the other parent’s house, that should factor in with how much time the child should spend at each house. Obviously, a strong relationship with siblings maybe should be fostered and that child should spend enough time around that child’s siblings to maintain a good relationship. So it’s a factor. It could mean the difference between visitation and joint physical custody. It could even be enough to make that parent with the half siblings get primary custody, especially if that parent was able to prove that a lot of the other factors favor that parent.

The next factor is the history of parental abuse towards the child or a sibling of the child. If one parent, the parent t seeking custody, whether it’s primary and physical,has a history of abusing that child or abusing a sibling of the child, yelling at the child, emotionally berating the child, physically assaulting and battering the child, that's gonna weigh against the parent. Now note that this is way down the list from some of these other factors. So, for instance, the first factor is the wishes of the child. This is way down the list. So even if the child was battered and abused in the past, that child may still prefer that parent for some reason, and the child’s preference may take precedence over a history of violence or abuse.

There may be reasons why one parent was historically abusive, and those reasons may no longer exist. Or maybe the other parent is just as bad or worse.

Okay, factor K is a domestic violence against the parent. The parent seeking custody has committed domestic violence against the other parent. That's going to weigh heavily against the parent that committed domestic violence. If that parent has been convicted of domestic violence, then family court doesn't even really have to do much of an analysis into whether domestic games occurred. So a criminal conviction can pretty much be taken as fact that domestic violence occurred and weigh heavily against that parent.

However, that parent can still argue the severity of the domestic violence whether it really was sufficient to deprive that parent of custody. For instance, you could be convicted of domestic violence simply for snatching a cell phone out of your spouse's hand. That's considered physical assault battery. In a domestic situation, that would amount to domestic violence. And if you admit that you did that to a police officer, you're charged with domestic violence. You're convicted of domestic violence for something that might not even be extremely horrible. Or enough to be sufficient to deprive you of custody. That's why it’s way down on the list of factors and it's just one of many. So just because you have domestic violence in the past doesn't mean you're automatically going to lose your case. It depends on the type of domestic violence, how recent it was, whether you've done it multiple times. Lots of things to consider. Also if you have not been convicted, you might be accused, in a family court setting by your ex, of domestic violence. But you've never been convicted.

Just because you haven't been convicted doesn't mean you get off Scott-free in a family court setting. Family court judge will look at the evidence to see if you in fact committed domestic violence. And when a family court judge looked at it, they don't have to look at it and be convinced beyond a reasonable doubt. Because this isn’t criminal court. This is civil court. They have to be convinced by a clear and convincing evidence. So if the Ex is presenting clear and convincing evidence that you committed domestic violence and it was of such a nature that you should not have custody, you might not get custody of your child as a result of that domestic violence. Again, facts are important. Perhaps there was a mutual combat. Perhaps it wasn't domestic violence on your part. You were merely defending yourself against domestic violence of the person who is now accusing you of domestic violence. That scenario happens quite frequently. And judges are not stupid. They usually can see through that type of accusation and argument. Remember now, Family Court judges go through thousands and thousands of cases. They see all kinds of evidence and they bring that experience into every single trial. So it's kind of hard to get away with lying to a judge.

Factor L, which is the last factor in this list, is abduction. If a parent has abducted the child, deprive the other parent of that parent’s time with the child, that can weigh heavily against the parent that did the abducting. Heavily. But that doesn’t necessarily mean the parent that is accused of doing the abducting will lose custody. Again there's all these other factors. Maybe the abduction was because that parent was afraid and had to do whatever they could to escape the other parent committing violence against the child or against the parent or both of them. We know about family annihilators. Family annihilators are usually men, middle-aged men who will get stressed to a point, where they will just kill the entire family before killing themselves. So there might be a very good reason that a parent abducted the child from the other parent. And while it creates a rebuttable presumption that the parent that did the abducting should not have custody. Remember, it’s a rebuttable presumption, meaning that parent can show the abduction was in the best interest of the child. It had to be done in order to save the life of the child.

So these factors are all very case-specific. The analysis that goes with them have to be determined on a case-by-case individual basis. They are very difficult to apply broadly. Every family is different. All family dynamics are different. Every person is different. Every child is different Every parent is different. And so the courts have to go through all these factors and consider the uniqueness of every family, to determine joint physical custody, primary physical capacity or sole physical custody.

So again this was an overview of NRS 125C.0035 subsection four, A through L best interest factors under Nevada law.

I'm Nevada Anthony right please subscribe below and leave comments that remember comments are not confidential in a public forum #12bestinterestsofthechildinNevada

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