When divorcing parents are vying for custody of their children, determining which parent is the more appropriate custodial parent can be like comparing apples to oranges. Generally, all things being equal, joint physical custody (close to equal parenting time) is the custody arrangement preferred by the courts in Washoe County. Courts are unlikely to award joint physical custody if one or more of the following is present:
- Addiction issues
- Abuse and/or neglect
- Mental health issues
The most common issue I see as a family law practitioner is addiction. Many times the same addiction issues that lead to the divorce itself are a focus in the resulting custody proceedings. The Court’s primary goal in custody proceedings is the best interest of the child. The Judge must take steps to ensure that the child will be protected from a parent’s addictive behaviors.
A parent suffering from an addictive behavior faces an uphill battle in a custody proceeding unless he or she takes steps to correct the problem. Many times the addict parent will have substantial limitations placed on his or her parenting time. Alcohol and drug addictions are the most common addiction in the child custody arena.
One cannot properly parent a child when they are intoxicated or high. True addicts are not able to put their children’s health and safety ahead of their desire to feed the addiction. For this reason, when the addiction is documented by corroborating evidence such as multiple DUIs or a positive drug test, supervised visitation is generally required for a period of time while the parent is attempting to obtain sobriety. An afflicted parent may also be ordered to undergo counseling and participate in some sort of court ordered monitoring.
If that parent cannot maintain sobriety, then parenting time may be eliminated completely. Since we live in a state where gaming is legal, many Nevada divorces include claims of gambling addictions. In my experience, gambling addictions are not strong cases for denial of custody rights unless the addiction rises to the level of the parent making improper parenting choices, such as leaving the children unattended at casinos or leaving them home alone in the middle of the night so that the parent may feed his or her addiction. In those cases, parenting time may be limited or structured in a way to protect the children from the negative effects of the addiction.
Sexual addictions are becoming more prevalent in child custody cases. In cases where there is documented evidence that the parent is a pedophile or sex offender, it is likely that severe restrictions will be placed on their parenting time. Believe it or not, being a sex offender does not automatically disqualify you as a parent. The state policy requires that the Court attempt to facilitate contact between children and parents unless doing so is not in the child’s best interests.
There are some cases where, after a psychosexual evaluation by an expert, the Court determines that a parent is not a danger to his or her own children, despite being a danger to others. Not all sexual addicts are pedophiles or sex offenders. In cases where the parent is addicted to consensual and lawful sexual conduct, the test seems to be whether the parent is able to shelter the child from the addiction.
If the child is in jeopardy of becoming sexualized due to exposure to pornography or the parent’s promiscuous lifestyle, then parenting time may be limited. However, courts are generally not interested in what a parent does when the children are not in his or her custody. For instance, if the parent has multiple sexual partners, hires an escort service or is attending “Eyes Wide Shut” parties on their own time, that is not likely to be relevant in a custody case.
If, however, the child is exposed, or is in real danger of being exposed, to any of the above, parenting time is likely to be restricted in order to protect the child from harm. The bright side of some of these sad and emotionally difficult cases is that the constraints on child custody sometimes propel parents into treatment for their addictions before they even truly acknowledge that they have a problem.
They love their kids; they want to maintain contact with them and they will do what it takes to make that happen. Many parents first recognize their addictions in court ordered therapy and fully engage in active recovery in order to regain custodial access of their children. And that is, of course, the goal of judicial intervention in the first place.
Jessica H. Anderson
Divorce Attorney Reno, NV
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