Mike H. T. Nguyen, Esq.

Normally, each party in a custody battle can work out a parenting plan agreeing to the amount of time each can spend with the child. A typical custodial arrangement is where the mother has the child five (5) days during the week and the father has visitation for two (2) days every weekend. If this is the case then the mother has primary physical custody of the child with the father receiving reasonable visitation. However, this is not usually the case in reality because both parents normally want more time with the child and some parenting agreements can be quite confusing as to who has what.

In cases where the father has visitation with the child three (3) to four (4) days per week it can be quite unclear as to the status of the custodial arrangement. Does the mother still have primary physical custody when the father has the child three (3) days per week or two (2) days per week plus the two (2) summer months? This concern is addressed in the 2009 Nevada case called Rivero v. Rivero. In this case, the Court held that “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.” 125 Nev. Adv. Op. No. 34. Therefore, if the father has the child three (3) days per week it would push the time share over 40% and thus he would be sharing joint physical custody with the mother 42%[(3 x 52) / 365]. Whenever a parent has the child more than 40% of the time the custodial arrangement is considered joint.

Physical custody arrangement is important because it affects either the mother’s or father’s ability to receive child support. Child support is normally awarded to the party having physical custody and joint custody will be factored into the calculus to offset the other party’s obligation.