Courts in the United States generally need to decide child custody cases based on the “best interest of the child.” This language is deliberately open-ended, as judges need to weigh the facts of each case carefully. And it is left to judges to actually quantify how a child’s best interest affects each parent’s right to access their children.

The Nevada Court of Appeals recently addressed this subject in a published opinion, Roe v. Roe, which involved a trial judge’s decision to award one parent sole physical custody of a child. The parents in this custody dispute divorced in 2013. They had one child during the marriage. During the divorce proceedings, the court awarded both parents joint legal and physical custody.

In 2020, however, the mother filed a motion to modify the custody order and give her sole physical custody of the now-11-year-old child. The mother alleged that the child had become “increasingly and alarmingly disrespectful and aggressive” towards her, which she blamed on the father’s influence. In response, the father filed a counter-motion seeking primary physical custody, alleging the mother was “emotionally unstable” and the child preferred to live with him.

As the case proceeded, the relationship between the mother and the child continued to deteriorate. On two occasions, police detained the child after he physically attacked the mother. The father filed an emergency motion seeking sole physical and legal custody. The judge granted this motion, finding “something wrong with the parent who cannot manage an 11-year old.” The judge further restricted the mother just six hours of visitation per week with the child.

But after another incident between the child and the mother, the court decided to prohibit the mother from having any contact with the child outside of therapy. Unfortunately, the mother could not afford to attend sessions with the court-appointed therapist. The court later said the mother could contact the child via phone or text. And after another hearing, the judge awarded the father “primary physical custody” based on the “severe deterioration” of the child’s relationship with the mother.

Court of Appeals: Judges Cannot Restrict Parent’s Rights Without Good Reason

The mother appealed the judge’s decision on several grounds. The Nevada Court of Appeals reviewed the matter and issued a published decision in July 2023. First, the appellate court held that “substantial evidence” supported the trial judge’s decision to modify the child’s previous physical custody arrangements. Specifically, there was the testimony of the parties, the child, and multiple witnesses and therapists, which all confirmed that the mother and child now had an “estranged” relationship.

But that was not the end of the matter. Chief Judge Michael P. Gibbons, writing for the three-judge Court of Appeals, said the trial judge’s allocation of parenting time was “contrary to Nevada law and policy.” All parents have a basic right to custody of their children. This includes parents who are “deemed highly emotionally dysregulated.”

More to the point, while Nevada courts have carefully defined the difference between awarding both parents joint custody or one parent “primary” physical custody, Gibbons said neither the state legislature nor the Nevada Supreme Court had ever defined “sole physical custody” as it affects the non-custodial’s right to parenting time. So the Court of Appeals now provided that definition:

We now define sole physical custody 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. Therefore, when a district court enters an order that limits 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, it has entered an order for sole physical custody.

Despite the trial judge’s characterization of its order as granting the father “primary physical custody,” Judge Gibbons said that it was in effect an order giving the father “sole physical custody.” And going forward, Gibbons said that trial judges needed to determine of one two things before making an award of sole physical custody: Either the non-custodial parent was “unfit for the child to reside with”; or the court makes specific findings detailing the “reasons why primary physical custody is not in the best interest of the child.” And if a court finds that either condition applies, the judge must still “order the least restrictive parenting time arrangement possible that is within the child’s best interest.”

In this case, Gibbons said the trial court failed to do the latter. To the contrary, the district court restricted the mother’s access to her child in a manner that was more severe than even parents who are currently in prison. And despite the evidence showing a deterioration in the parent-child relationship, Gibbons emphasized that the mother had no criminal record or history of substance abuse or domestic violence. He further criticized the district court for effectively conditioning the mother’s parenting time on paying for therapy she could not afford despite having a job.

As such, the Court of Appeals returned the case to the district court where a different judge would consider whether sole physical custody was justified based on the guidelines set forth in Gibbons' opinion. And after making such a determination, the new judge must then “enter the least restrictive parenting time arrangement possible consistent with a child’s best interest.”

Consult a Qualified Family Law Attorney

Child custody cases are often fraught with emotion. And as the case above illustrates, the law in this area is always evolving. That is why it is critical for both sides to seek out competent legal advice from a qualified family law attorney in their area.

Disclaimer: This post is provided for informational purposes only. The author is not an attorney and nothing in this post should be construed as legal advice. You should always consult a licensed and qualified attorney in your state about any legal matter.