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Joint Custody

Introduction

Joint custody generally is understood as being the shared placement of children with parents after divorce. While this is not a true legal definition, and joint custody has a much more complicated definition than that, more and more parents, courts, and child advocates seem to be supportive of parents more equally sharing time with their children after divorce. Joint custody of children, however, is the most controversial and hotly debated issue in the divorce arena.

Legal Definitions

Legal custody refers to the parents’ decision-making authority for the major issues affecting the children’s lives. It generally includes such matters as medical treatment, religious upbringing, education, drivers’ licensing, and permission to marry or to join the military.

Sole custody gives the right to make major decisions about a child’s life to one parent alone. Generally disfavored, sole custody is usually only ordered in those cases where both parents agree to it or where there has been evidence of domestic violence.

Joint legal custody
Parents with joint legal custody make major decisions jointly. While, generally, a parent may make decisions about daily living matters without much input from the other parent, as far as major decisions go, one parent may not act unilaterally.

Physical custody
Physical custody refers to where the child actually spends time. Joint physical custody does not necessarily mean that the parents have equal time with the child. Depending on the parents’ work schedules, the geographical proximity of the homes, the child’s own school and other activity schedules, and a variety of other factors, joint physical custody may be equal time between parents, but it generally refers to a less equal split of the children’s time with each parent.

Primary physical custody, alternate physical custody, secondary physical custody, primary placement, and the like, are all terms that refer to various arrangements of physical custody.

Visitation usually refers to an arrangement whereby the child primarily lives with one parent and alternately spends time at the other parents’ home. Some object to this term since, they argue, it places the non-primary custodian in a second-rate status when compared to the primary custodian.

Physical Placement, a term used with growing frequency, simply refers to the actual time that the child is placed in the parent’s home. Generally, a court order, whether by decree of the court or by stipulation of the parents, will set forth a specific schedule of physical placement for the child between the parents’ homes.

Split custody refers to an arrangement whereby, for parties who have more than one child, one parent takes primary custody of one or more of the children while the other party takes primary custody of the other child or children.

Note: Because of the detrimental effects of separating brothers and sisters, few courts will find it in the best interests of the children to split up a sibling group unless there is specific provision for the children to spend significant time together and with the other parent.

Debated Issues

In an ideal world, of course, parents would not fight over, or have courts decide, the custodial arrangements for their child post-divorce. However, since most do not live in an ideal world, parents do fight over their children, and, in some cases, courts must decide what custodial arrangements are in the children’s best interests.

Parental Rights vs. Best Interests of Children
While parents in the United States do have the right to make decisions about their child’s welfare and to raise a child according to their own standards, such parents’ rights are not considered nearly as important in a divorce case as what is in the “best interests of the children.” However, it is highly disputed as to what is, in fact, in the best interests of the children. Some advocates contend that equal time between parents is in the best interests of the child, while others argue that equal time does not lend itself well enough to a child’s need for stability.

Children’s adjustment vs. maladjustment
Advocates on both sides of the issue can cite chapter and verse of studies regarding 50-50 placement of children that support their view and negate the other side’s argument. For example, 50-50 placement has been cited as the reason for some children’s maladaptive behavior as many times as it has been cited as the reason for other children’s well adapted behavior.

Alleviate parental conflict vs. create parental conflict
Some advocates say that forced 50-50 placement is one way to end the fight between embattled parents and others contend that 50-50 placement causes fights between parents who did not fight before that custodial arrangement was in place.

Conclusion

Case by Case Basis
The fact is, children are all different, just as parents are all different, and the situations of divorcing couples are all very different. Thus, it is likely that the debate about 50-50 placement will continue until there are more definitive answers to the issues that both sides of the debate raise. Until then, it is incumbent upon all who take part in the process, parents, lawyers, judges, social workers, psychologists, and other family members, to keep the focus on the child who is in front of them and ask, “Given all the factors in this family’s case, what is in this child’s best interest?”

Survey: Survey For Parents Considering Joint Custody

To read and print out a copy of the checklist, please follow the link below.

Survey for parents considering joint custody

You can download a free copy of Adobe Acrobat Reader here

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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