Nevada State Laws on Custody Prior to Divorce

By Elizabeth Rayne

Often, parents in Nevada will ask the court to make a temporary custody determination before the divorce is final. Without a custody order in place, the parents have joint custody, meaning either parent may make decisions for the child or provide a home for the child. In making both temporary and permanent custody determinations, Nevada courts are primarily concerned with what is in the best interest of the child.


Nevada courts can make custody determinations only if the court has jurisdiction, meaning the court has authority to do so. You may file for custody in Nevada if Nevada is your child's "home state." The child must have lived in the state with a parent or legal guardian for at least six months or, if the child is less than 6 months old, since the time of her birth. Nevada may also confer jurisdiction if the child and at least one parent have significant connections with the state, such as those concerning the child's care, training, protection and personal relationships.

Custody Prior to Court Order

In Nevada, before either parent asks the court to make a custody determination, the parents will have joint physical and legal custody. In other words, both parents are entitled to spend time with the child and make decisions for the child until the court decides otherwise. Before a court order is in place, either parent may take possession of the child, even leave the state, without the other parent's permission. However, a parent may ask the court to grant a temporary order to prevent a parent from taking the child out of state.

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Emergency Custody

After filing a complaint for divorce, either parent may file a motion to request a temporary custody order while the divorce is pending. In emergency situations, such as domestic violence or where one parent has threatened to remove the child from the state, a parent may file an ex parte motion for temporary custody. With an ex parte hearing, the other parent may not receive notice of the motion and the court will make a temporary determination based on the evidence provided by the one parent. An ex parte order typically lasts for only a few days, until the court can review the order and available evidence at a hearing attended by both parties. At that time, the court will likely convert the ex parte order into a temporary custody order, adjusting the terms in a way that serves the best interests of the child. Temporary orders typically last until the final custody order is in place.

Non-Emergency Temporary Custody

Either parent may request temporary custody, even if it is not an emergency situation. For non-emergency requests for temporary custody, the court will hold a hearing with both parents present to determine the temporary arrangement, based on what is in the child's best interest. The temporary order will expire as soon as a final divorce order is in place. The court has discretion to turn the temporary order into a permanent order, particularly if the order seems to work for the parents and the children. However, the court may also change the order based on new evidence presented during subsequent hearings for permanent custody.

Best Interest of the Child

The court determines both permanent and temporary custody orders based on what is in the best interest of the child. The court will consider any facts it considers relevant, especially each parent's ability to take care of the child. Factors the court may consider include the health of the parents and child, ability of the parents to cooperate with each other, and the wishes of the child if he is of sufficient age and maturity. Furthermore, Nevada courts presume it is in the best interest of the child for both parents to have substantial and frequent contact with their child and share in making decisions and taking responsibility for the child.

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