What Constitutes Primary and Joint Physical Custody

For many parents going through a divorce, it can be very unclear what constitutes primary and joint physical custody. Many people probably have the misconception that for the arrangement to constitute joint physical custody, each parent must have the child 50 percent of the time. However, in a fairly recent case, Rivero v. Rivero, the Nevada Supreme Court clarified how much time each parent must have with the child to have joint physical custody.
In Rivero, the Nevada Supreme Court stated that although joint physical custody must approximate an equal timeshare, given the variations inherent in child rearing, such as school schedules, sports, vacations, and parents’ work schedules, to name a few, an exactly equal timeshare is not always possible. Therefore, there must be some flexibility in the timeshare requirement. The court concluded that each parent must have physical custody of the child at least 40 percent of the time to constitute joint physical custody.

As with all aspects of custody arrangements, the sole consideration of the court is the best interest of the child. Courts generally agree that joint legal and physical custody is usually in the child’s best interest if that is what the parents agree upon. The ruling in Rivero made a clearer guideline for parents to follow when making a timeshare arrangement for their children in order to ensure joint physical custody. Trying to maintain an exact 50/50 split between the parents can be sometimes impossible. This ruling makes it much more practical to create a joint physical custody arrangement.

The same is true for primary physical custody: “if a parent has physical custody less than 40% of the time, then that parent has visitation rights and the other parent has primary physical custody.” The type of physical custody arrangement is important because it affects a parent’s ability to receive child support. Child support is normally awarded to the party having physical custody and joint custody will be considered to offset the other party’s obligation.

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