Joint custody (United States)

Joint custody is a court order whereby custody of a child is awarded to both parties. [1][2] In joint custody both parents are custodial parents and neither parent is a non-custodial parent, or, in other words, the child has two custodial parents.[2] In the United States, many states recognize two forms of joint custody, which include joint physical custody (called also "shared custody" or "shared placement") and joint legal custody.[2] In joint physical custody, the actual lodging and care of the child is shared according to a court-ordered custody schedule.[3][4] In joint legal custody, both parents share the ability to have access to their children's records, such as educational records, health records, and other records.

History of joint custody

In England, prior to the nineteenth century, common law considered children to be the property of their father.[5][6] However, the economic and social changes that occurred during the nineteenth century lead to a shift in ideas about the dynamics of the family.[5] Industrialization separated the home and the workplace, keeping fathers away from their children in order to earn wages and provide for their family.[5] Conversely, mothers were expected to stay in the home and care for the household and the children.[5] Important social changes such as women's suffrage and child development theories allowed for ideas surrounding the importance of maternal care.[5]

There has been a major shift which is favoring joint custody in the United States court system, which began in the mid-1980s.[7][8] This change has shifted the emphasis from having the need for the child to have an attachment to one "psychological" parent to the need to have an ongoing relationship between both parents.[8]

Originally, joint legal custody meant joint custody.[8] In this joint legal custody arrangement, the child's parents shared responsibility over discussing issues related to the child-rearing.[8] In these arrangements with joint legal custody, one of the parents was awarded physical custody, which designated them as the primary parent, or one of the parents was allowed to determine the primary residence of the children.[8] Though this implied that both parents had a "significant period" of time with the children, it did nothing to ensure this factor, which meant that the parent without primary custody of the child could end up having little opportunity to see his or her children.[8]

Increasingly, however, joint physical custody, in many U.S. states, is used with the presumption of equal shared parenting, however, in most states, it is still viewed as creating a necessity to provide each of the parents with "significant periods" of physical custody to ensure the children "frequent and continuing contact" with both parents.[8][9]

Concept of joint custody

Many U.S. states recognize two forms of joint custody, joint physical custody and joint legal custody.[10][2] The definition of joint custody may vary across the United States, along with the laws governing the grant of joint custody to parents.[8][9]

With the differentiation of legal and physical custody, it is possible for a court to make separate determinations of whether to grant joint legal custody, joint physical custody, or both. In many states, the determination of whether or not to grant joint or sole custody is made separately for legal and physical custody.[11]

A court may thus award sole legal custody of the children to one of the parents, but with joint physical custody to both parents.[11] In many states, a parent with sole physical custody is referred to as the custodial parent, and the other parent is referred to as the non-custodial parent.[12] With joint physical custody, a court's use of terms such as "primary custodial parent" and "primary residence" may not have much significance beyond being part of the court's division of child tax exemptions between the parents, as both parents are custodial parents.[12]

Alternatively, a parent could have sole physical custody, with the children's primarily residence with only one of the parents, but grant joint legal custody such that both parents share authority over important decisions that affect a child.[9]

When a court awards joint physical custody, the court may divide the time that the child spends time with both parents in a variety of ways, including a standard parenting time schedule, an equal division of time in each parent's home, or potentially with the children living in a home with the each parent coming to that home for parenting time.[9]

In a divorce or child custody case between unmarried parents, a judge will address the joint legal custody rights of the parents.[13] In a custody order, it's common for one parent to have physical custody and the other parent to have some sort of visitation rights, but legal custody is awarded separately.[13] Thus, even when one parent is the primary custodian, joint legal custody may be awarded either to both of the parents or to only one of the parents, depending on state law and the facts of the case.

Joint legal custody grants parents joint decision-making rights for important decisions that affect their minor children.[13] The parents jointly decide how to raise their children in matters of schooling, spirituality, social events, sports religion, medical concerns, and other important decisions.[13] Both parents have equal decision-making status where the welfare and safety of the children is concerned.[14][15] This generally means that both parents must be involved for major legal matters concerning their children, but that ordinary "day-to-day" matters and issues are left to the discretion of the parent who is providing physical care for the children at the time the decision is made.[11] Also, with joint legal custody, both parents share the ability to access to their children's records, including educational records, health records, and other records.[13]

Joint physical custody

In joint physical custody, also known as joint physical care, the child has a legal home or domicile in both parents' homes. As with any child custody case involving the division of parenting time, the lodging and care of the child is shared according to a court-ordered custody schedule (also known as a "parenting plan" or "parenting schedule").[3][4] In some states, the term visitation is no longer used with joint physical custody, but is instead reserved to sole custody orders.

In some states joint physical custody creates a presumption of equal shared parenting, however in most states, joint physical custody creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents.[8][9] For example, states such as Alabama, California, and Texas do not necessarily require joint custody orders to result in substantially equal parenting time, whereas states such as Arizona, Georgia, and Louisiana do require joint custody orders to result in substantially equal parenting time where feasible.[16] Courts generally have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.[8] In some states, however, courts have provided a clear definition, for instance, in Nevada, the Supreme Court has defined joint physical custody as an arrangement where each parent has at least 40% of the custodial time on a yearly basis.

Approaches to joint custody

States tend to have one of three approaches to joint physical custody.[17][18]

  1. Presumption in favor of joint custody: In some states joint physical custody is chosen over other arrangements unless the court finds that joint custody would not be in the best interest of the children. In other words it is the preferred arrangement.[17][18]
  2. No presumption: In some states, joint physical custody is simply an option that parents may request, but it is not legally presumed to be the preferred arrangement.[17][18]
  3. Judicial discretion: In some states a judge may grant joint physical custody even when it is not requested by a parent, or is opposed by one or both parents.[17][18]

Joint custody arrangements

Many parenting schedules for joint physical custody provide for a more equal time share between parents.[19] For example, parents may choose a form of alternating custody, pursuant to which the children live for a period of time with one parent, and then for a similar amount of time with the other parent.[17]

  • Alternating weeks between the parents' houses/apartments.[19]
  • Splitting longer periods of time between the parents' houses/apartments, such as months, several months, or even up to a year.[19]

Shared 50/50 custody has some unique configurations to ensure equitable time sharing, for example the 2-2-5-5 arrangement shown below.

WeekMondayTuesdayWednesdayThursdayFridaySaturdaySunday
Week 1MotherMotherFatherFatherMotherMotherMother
Week 2MotherMotherFatherFatherFatherFatherFather
Week 3MotherMotherFatherFatherMotherMotherMother
Week 4MotherMotherFatherFatherFatherFatherFather

Other shared custody arrangements include 3-4-4-3, 2-2-3, and alternating every 2 days.

Even in a joint custody arrangement, parents may follow a more conventional division of parenting time. For example, children may spend weekends and some holidays with one parent, but spend most weekdays with the other parent.[19]

Bird's nest custody is an uncommon form of joint custody in which, rather than having the children go from one parent's house to the other parent's house, the parents move in and out of the house in which the children constantly reside.[20][17] The goal of this arrangement is to shift the burden of upheaval and moving between homes onto the parents rather than the children.[20] However, due to the high cost of maintaining three households, one for each parent and one for the children, it's rarely a viable option in a custody case.[17]

Impact on families

Divorce is difficult on all parties involved in the process, including the children.[21] Due to the stressful nature of divorce, along with inherent issues on the amount of time the children can spend with each parent, the process can have a long and lasting impact on the children.[21][22] Unless the children's parents are often involved in intense conflict, or one of the parents is abusive and/or mentally ill, the children tend to fare better if the custody arrangement is a joint custody arrangement.[23][24][25] Numerous studies have found that in joint custody arrangements, the children tend to exhibit better relationships with their families, better performance in their schools, higher levels of self-esteem, and fewer conduct and emotional issues.[25][22] Further, it has been found that children that have a sole custody arrangement tend to have poorer outcomes when compared to average children (or rather children who do not have divorced parents), where children that have a joint custody arrangement tend to fare as well as average children.[25][22] However, joint physical custody with an even division of time is not always necessary.[21][25] These effects are generally seen simply when the children spend a substantial amount of time with both parents.[21] According to Robert Emery, a divorce mediation expert, "In many ways, joint physical custody is the ideal arrangement for children because they still have two parents very much involved in their lives."[26] This statement has been supported by psychological data.[26] Speculation that parental conflict erases the benefits of joint physical custody have not been supported by empirical research. A 2017 paper appearing in a journal published by the American Psychological Association analyzed every study that included measures and controls for conflict when comparing joint and sole physical custody families.[27] Conflict was neither more nor less damaging for children in joint physical custody than those in sole custody. Of 16 studies that controlled for conflict when measuring children’s adjustment, only one reported worse adjustment in joint physical custody. One study found that boys did better and girls worse. Fourteen studies reported either better outcomes in joint physical custody or no differences, even after taking conflict into account.

The most important factor influencing a child's well-being and adjustment after divorce is exposure to positive parenting and relationships, followed closely by family economic stability.[28] Children that come from families with low or contained parental conflict, effective and cooperative parenting, positive relationships, and economic stability are more likely to benefit psychologically following divorce, when compared to average children.[29] A study that specifically supports this theory has found that adolescents assigned to a joint custody arrangement scored higher in behavioral, emotional, and academic functioning when compared to children who have been placed in sole custody arrangements.[25][28] Furthermore, children in joint custody report higher self-esteem and lower levels of behavioral issues and greater overall post-divorce adjustment as opposed to children in sole custody arrangements.[25][26] However, a child's temperament and age have also been shown to have a strong impact on the child's development.[28] Children that have easygoing, adaptable temperaments are much more likely to benefit from the transitions that they will inevitably experience from a joint custody arrangement.[28] Furthermore, some commentators believe that infants and preschoolers are not likely to benefit from joint custody arrangements due to the importance of a consistent routine and the security of a primary attachment figure at that age.[28] This belief is not the accepted and settled view of mainstream scholars according to the Warshak consensus report published in an American Psychological Association journal with the endorsement of 110 researchers and practitioners, many of whom are prominent international authorities on attachment, early child development, and divorce.[30]

The benefits for children to maintain relationships with both parents have been repeatedly shown in research.[25][28] Children in joint custody arrangements often report greater levels of satisfaction with the division of time between their parents and children are also less likely to feel torn between their parents when compared with children who are in sole custody arrangements.[28] In addition, children in joint custody arrangements report feeling closer to both parents than children in sole custody arrangements.[28] Joint custody arrangements also appear to benefit the parents. Not only do parents in joint custody arrangements report lower levels of conflict with one another, when compared to those in sole custody arrangements, but joint custody is frequently related to more positive relationships, effective parenting, and lower inter-parental conflict; key factors that ensure a child’s well-being following divorce.[28] However, it is important to point out that children are far less likely to do well with joint custody and sole custody arrangements when their parents used them as pawns or when they consistently witness their parents' frequent, intense, and ongoing conflict.[30]

No matter which side of the debate the experts are on, they all agree on one thing: All forms of custody work best with good communication and a willingness for the parents to work and to shield children from being involved in their parents' disputes.

There are some inherent benefits to this form of custody arrangement.[11] One main benefit of having joint legal custody is that the parents are legal equals, which means that both parents influence important decisions in the child's upbringing, which leads to less animosity and negativity between the parents, along with encouraging both parents to be proactive in the child's upbringing.[11] A second benefit of having joint legal custody is that the parents exhibit a feeling of well being knowing they are working together in making decisions based on what their child's/children's needs are.[11] This form of joint custody enables parents to focus solely on the children, with the emphasis on the health and well-being of the child/children.[31] By doing so, this has the potential to reverse some of the emotional effects on the children in the long-run.[11][31] Another benefit of joint legal custody is that it fosters an environment in which the parents of the child have some form of a means of communication in which open dialogue can lead to ensuring a safe, nurturing environment for the child.[11][31]

When parents divorce and the children are in the picture, many problems will arise during the difficult process of determining custody.[11][31] For instance, if there is an argument regarding joint legal custody, the process to earn legal custody will take longer than anticipated and will ultimately impact the relationship of the parents and the children.[11][31] It may also encourage poor decisions and will damage bonds, which, in turn frequently escalates into a conflict over sole legal custody.[11][31] Another criticism of having a joint legal custody arrangement is that it is a frequent occurrence for one parent to attempt to control the majority of decisions in the child's life (regardless of what the decree of joint legal custody states), which generally leads to conflict.[11] Additionally, in a joint legal custody arrangement, if the parents of the children do not get along, this situation has the potential to cause parents to become combative and argue on every decision that needs to be made about their children, which can be extremely stressful for not only the children involved, but also for the parents.[11]

Benefits and criticisms of joint physical custody

According to Gayle Smith, a family lawyer, there are some inherent benefits to a joint physical custody arrangement.[11] One benefit of joint physical custody is that the burden of sole custody is not placed on the parent as the time involved in raising the children is divided among the two parties involved, allowing each of the parties more time to spend on their careers, for instance. A second benefit of joint physical custody is that the children will still have a "significant period" of time with each of the parents, which closely resembles the relationship before the divorce, legal separation, or break-up. A third benefit of joint physical custody is that it helps ensure that the children will grow up with both a male and a female role model, which may not be ensured through sole physical custody, for instance.[11]

There are some inherent criticisms to joint physical custody. A criticism of the joint physical custody arrangement is that due to the nature of the arrangement, the parents are in frequent contact with each other than in other situations, leading to conflict which has the potential to negatively impact all parties involved, including the children.[17] Research does not support this concern. Numerous studies found that parents with joint physical custody had lower levels of conflict.[32] There are numerous opinions that the constant moving back and forth between two homes will have a negative impact on children emotionally. The feeling that there is "Mom's House" and "Dad's House" doesn't leave anywhere for the children to feel is "my home".

Other forms of custody

  • Sole custody is an arrangement whereby only one parent has physical and legal custody of a child.[17]
  • Split custody is an arrangement whereby one parent has full-time custody over some children, and the other parent has full custody over the other children.[17]
  • Third-party custody is an arrangement in whereby the children do not remain with either biological parent, and are placed under the custody of a third person.[17]

See also

References

  1. ↑ See, e.g., Arizona State Legislature (2011). "25-402". Retrieved 27 September 2011.
  2. 1 2 3 4 See, e.g., "Georgia Code Title 19. Domestic Relations § 19-9-6". Findlaw. Thomson Reuters. Retrieved 29 November 2017.
  3. 1 2 See, e.g., Oregon State Legislature (1997). "ORS 107.102 Parenting plan". Retrieved 27 September 2011.
  4. 1 2 Kaplan PMBR (7 July 2009). Kaplan PMBR FINALS: Family Law: Core Concepts and Key Questions. Kaplan Publishing. pp. 22–23. ISBN 978-1-60714-098-6. Retrieved 15 October 2011.
  5. 1 2 3 4 5 Jay Folberg (23 August 1991). Joint Custody and Shared Parenting. Guilford Press. pp. 4–5. ISBN 978-0-89862-481-6. Retrieved 18 October 2011.
  6. ↑ Margorie Louise Engel; Diana Delhi Gould (1 January 1992). Divorce Decisions Workbook: A Planning and Action Guide to the Practical Side of Divorce. McGraw-Hill Professional. pp. 107–108. ISBN 978-0-07-019571-4. Retrieved 19 October 2011.
  7. ↑ Judith S. Wallerstein; Joan B. Kelly (22 August 1996). Surviving the Breakup: How Children and Parents Cope with Divorce. Basic Books. p. 121. ISBN 978-0-465-08345-9. Retrieved 15 October 2011.
  8. 1 2 3 4 5 6 7 8 9 10 Patrick Parkinson (21 February 2011). Family Law and the Indissolubility of Parenthood. Cambridge University Press. pp. 45–49. ISBN 978-0-521-11610-7. Retrieved 25 September 2011.
  9. 1 2 3 4 5 Ann Estin, Bonding after Divorce: Comments on Joint Custody: Bonding and Monitoring Theories, 73 Ind. L. J. 441, 442 (1998).
  10. ↑ Larson, Aaron (11 October 2016). "What is Child Custody". ExpertLaw. Retrieved 2 October 2017.
  11. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Gayle Rosenwald Smith; Sally Abrahms (3 July 2007). What Every Woman Should Know about Divorce and Custody: Judges, Lawyers, and Therapists Share Winning Strategies on How to Keep the Kids, the Cash, and Your Sanity. Penguin. pp. 46–48. ISBN 978-0-399-53349-5. Retrieved 15 October 2011.
  12. 1 2 In re Marriage of Rose and Richardson (App. 2 Dist. 2002) 126 Cal.App.4th 941. "The term `primary physical custody' has no legal meaning."Court of Appeal, Second District, Division 5, California (2002). "Marriage of Rose and Richardson".
  13. 1 2 3 4 5 Robert E. Emery (1999). Marriage, Divorce, and Children's Adjustment. SAGE. pp. 79–124. ISBN 978-0-7619-0252-2. Retrieved 2 November 2011.
  14. ↑ See, e.g., California State Legislature (2011). "California Family Code Section 3004". Retrieved 29 November 2017.
  15. ↑ Elissa P. Benedek; Catherine F. Brown (1998). How to Help Your Child Overcome Your Divorce. Newmarket Press. pp. 44–48. ISBN 978-1-55704-461-7. Retrieved 16 October 2011.
  16. ↑ Minnesota Presumptive Joint Physical Custody Group Report under House File 1262 (2008) Appendix B "State Definitions of Joint Physical Custody"
  17. 1 2 3 4 5 6 7 8 9 10 11 Webster Watnik (April 2003). Child Custody Made Simple: Understanding the Laws of Child Custody and Child Support. Single Parent Press. pp. 16–38. ISBN 978-0-9649404-3-7. Retrieved 25 September 2011.
  18. 1 2 3 4 Linda D. Elrod & Robert G Spector, "A Review of the Year In Family Law 2007-2008: Federalization and Nationalization Continue," Fam. L. Q. 42 (2009): 713.
  19. 1 2 3 4 John Hartson; Brenda Payne (2006). Creating Effective Parenting Plans: A Developmental Approach for Lawyers and Divorce Professionals. American Bar Association. pp. 27–39. ISBN 978-1-59031-610-8. Retrieved 2 November 2011.
  20. 1 2 Family Service Association of America (1983). Social Casework. Family Service Association of America. p. 412. Retrieved 9 November 2011.
  21. 1 2 3 4 Lerche Davis, Jeanie. "Joint Custody Best for Most Children". WebMD Health News. WebMD, Inc. Retrieved 27 September 2011.
  22. 1 2 3 Bauserman, R (2002). "Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic review". Journal of Family Psychology. 16 (1): 91–102. doi:10.1037/0893-3200.16.1.91. PMID 11915414.
  23. ↑ Larson, Aaron (19 September 2016). "How to Make Joint Child Custody Work". ExpertLaw. Retrieved 2 October 2017.
  24. ↑ Bauserman, R. (2002). Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic review. Journal of Family Psychology, 16(1), 91-102. doi:10.1037/0893-3200.16.1.91
  25. 1 2 3 4 5 6 7 Peterson, Karen S. (24 March 2002). "Joint Custody Best for Kids After Divorce". USATODAY.com. Retrieved 27 September 2011.
  26. 1 2 3 Siebel, Cynthia C. (Summer 2006). "Fathers and Their Children: Legal and Psychological Issues of Joint Custody". Family Law Quarterly. 40 (2): 213–236.
  27. ↑ Nielsen, L. (2017). Re-examining the Research on Parental Conflict, Coparenting and Custody Arrangements, Psychology, Public Policy and Law, Volume 23, in press.
  28. 1 2 3 4 5 6 7 8 9 Buchanan, Christy M.; Parissa L. Jahromi (28 June 2008). "A Psychological Perspective On Shared Custody Arrangements" (PDF). Wake Forest Law Review. 43: 419–439. Retrieved 27 September 2011.
  29. ↑ Post, Dianne (1988–1990). "Arguments Against Joint Custody". Berkeley Women's Law Journal: 316–325.
  30. 1 2 Warshak, R. A., with the endorsement of the researchers and practitioners listed in the Appendix. (2014). Social Science and Parenting Plans for Young Children: A Consensus Report. Psychology, Public Policy and Law, 20 (1), 46-67.
  31. ↑ Nielsen, L. (2014). Shared Physical Custody: Summary of 40 Studies on Outcomes for Children. Journal of Divorce & Remarriage, 55, 613-635.
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