Even though Nevada has adopted the "parental preference" giving parents a preferential custody of their children, a parent's rights are not absolute. NRS 125C.050 allows non-parents to petition for visitation of children, and NRS 125C.004 allows the court to grant custody to non-parents when parental custody would be detrimental.
VISITATION RIGHTS
NRS 125C.050 allows non-parents to petition for visitation if a parent as denied or unreasonably restricted visits with the child.
Under subsection 1, if a parent is deceased or otherwise does not have custody of a child (because the parent is divorced, separated, or had his or her parental rights terminated,) grandparents, great-grandparents, and siblings may be granted visitation.
Under subsection 2, anyone with whom a child has resided and the child has established a meaningful relationship may be granted visitation.
The court starts with the presumption that granting non-parent visitation is not in the best interests of the child. The burden is on the non-parent to show, by clear and convincing evidence (a very high standard of evidence) that the visitation is in the best interests of the child. In deciding whether or not the non-parent has shown that visitation is in the best interests of the child, the court must consider:
(1) The love, affection, and other emotional ties existing between the non-parent and the child;
(2) The capacity and willingness of the non-parent to give the child love, affection, and guidance and to serve as a role model to the child; the capacity and willingness to cooperate in providing the child with food, clothing and other material needs during visitation; and the capacity and willingness to cooperate in providing the child with health care or alternative care;
(3) The prior relationship between the child and the non-parent, including whether the child resided with the non-parent and whether the child was included in holidays and family gatherings;
(4) The moral fitness of the non-parent;
(5) The mental and physical health of the non-parent;
(6) The child's preference, if the child is of sufficient maturity to express a preference;
(7) The willingness of the non-parent to facilitate and encourage a close and continuing relationship between the child and the parents as well as with other relatives;
(8) The medical and other needs of the child as affected by the visitation;
(9) The support, including financial support, provided by the party seeking visitation;
(10) Any other factor that specifically pertains to the need to grant visitation against the wishes of the parent.
CUSTODY RIGHTS
A non-parent who seeks more than the visitation described in NRS 125C.050 can ask for custody of the child pursuant to NRS 125C.004. Although most states reserve custody for parents alone, requiring non-parents to instead seek guardianship, Nevada expressly allows the court to grant custody to non-parents. "Before the court makes an order awarding custody to any person other than a parent, without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a non-parent is required to serve the best interest of the child." NRS 125C.004(1).
The keystone case for custody (and guardianship) for non-parents is Locklin v. Duka, 112 Nev. 1489, 929 P.2d 930 (Nev. 1996). The parental preference can be overcome by a showing of parental unfitness or other extraordinary circumstances. Factors which may be considered include:
(1) Abandonment or Persistent Neglect of the Child by a Parent;
(2) Likelihood of serious physical or emotional harm to the child if placed in the parent's custody;
(3) Extended, unjustifiable absence of parental custody;
(4) Continuing neglect or abdication of parental responsibilities;
(5) Provision of the child's physical, emotional and other needs by persons other than the parent over a significant period of time;
(6) The existence of a bonded relationship between the child and the non-parent custodian sufficient to cause significant emotional harm to the child in the event of a change in custody;
(7) The age of the child during the period when his or her care is provided by a non-parent;
(8) The child's well-being has been substantially enhanced under the care of the non-parent;
(9) The extent of the parent's delay in seeking to acquire custody of the child;
(10) The demonstrated quality of the parent's commitment to raising the child;
(11) The likely degree of stability and security in the child's further with the parent;
(12) The extent to which the child's right to an education would be impaired while in the custody of the parent; and
(13) Any other circumstances that would substantially and adversely impact the welfare of the child.
Even if the parent is unfitness or there are extraordinary circumstances, the non-parent must still show that awarding custody to the non-parent is in the child's best interest. The best interest of the child factors are enumerated in NRS 125C.0035.
GUARDIANSHIP
A guardianship is very similar to custody, and uses the same factors stated in Locklin v. Duka to determine whether a non-parent should be awarded guardianship. But the process for a Petition for Guardianship is rather different than the process associated with a Complaint for Custody. A Guardianship petition is more formalized and requires that many more people and relatives. A guardianship also requires a report to the Court each year regarding how the minor is doing.