Joint custody is an agreement or court order where custody of a child both parents share custody of their children.See, e.g., See, e.g., In the United States, there are two forms of joint custody, joint physical custody (called also "shared parenting" or "shared custody") and joint legal custody. In joint physical custody, the lodging and care of the child is shared according to an agreed-upon or court-ordered parenting schedule with equal or close to equal parenting time.See, e.g., In joint legal custody, both parents share the ability to make decisions about the child, regarding e.g. education, medical care and religion, and both can access their children's educational and health records.
It is possible for a court to make separate determinations of legal and physical custody. It is common to combine joint legal custody with sole physical custody and visitation, but the opposite is rare. In joint physical custody both parents are custodial parents and neither parent is a non-custodial parent.
Joint custody is distinct from sole custody. In sole physical custody, the child's lives primarily in the home of one parent while the children may have visitation with the other parent. In sole legal custody, one parent is assigned the exclusive right to make decisions concerning the children's important life activities, such as choice of school or doctor, and authorization of medical treatment or counseling. Joint custody is different from split custody, an arrangement in which one parent has sole custody over some of the parents' children, and the other parent has sole custody over the other children.
History In England, prior to the nineteenth century, common law considered children to be the property of their father. However, the economic and social changes that occurred during the nineteenth century lead to a shift in ideas about the dynamics of the family. Industrialization separated the home and the workplace, keeping fathers away from their children in order to earn wages and provide for their family. Conversely, mothers were expected to stay in the home and care for the household and the children. Important social changes such as women's suffrage and child development theories allowed for ideas surrounding the importance of maternal care.
There has been a major shift which is favoring joint custody in the United States court system, which began in the mid-1980s. 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.
Originally, joint legal custody meant joint custody. In this joint legal custody arrangement, the child's parents shared responsibility over discussing issues related to the child-rearing. 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. 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.
In many U.S. states, joint custody is increasingly 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.Ann Estin, Bonding after Divorce: Comments on Joint Custody: Bonding and Monitoring Theories, 73 Ind. L. J. 441, 442 (1998).
Shared parenting legislation
A number of states have considered or passed laws that create a rebuttable legal presumption in favor of shared parenting in a custody case.See, e.g., Jason Petrie, Kentucky House Bill 528, LegiScan, 2018.Shared parenting law long overdue, The Daily Independent, August 28, 2018.
Joint legal custody Joint legal custody grants parents joint decision-making rights for important decisions that affect their minor children. The parents jointly decide how to raise their children in matters of schooling, spirituality, social events, sports religion, medical concerns, and other important decisions. Both parents have equal decision-making status where the welfare and safety of the children is concerned.See, e.g., 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. 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.
Joint legal custody can be combined with either joint physical custody or with sole physical custody and visitation rights. 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. Thus, even when one parent is the primary custodian, joint legal custody may be awarded to both parents.
Advantages When parents have joint legal custody to share important decision-making that affect their child, both parents may be more proactive in their child's upbringing, and the parents may experience less animosity and negativity in their co-parenting relationship. Parents may also communicate more effectively with each other, and they may exhibit feelings of well-being as a result of their working together to make decisions based on their child's needs. Proponents argue that it is good for children to see that their parents can work together, and over time joint legal custody has the potential to reverse some of the emotional effects of divorce on the children.
Disadvantages Joint legal custody arrangements may be problematic when one parent attempts to control the majority of decisions in the child's life without regard to the other parent. Attempts to share decision-making may then cause one or both parents to become combative and argue over many decisions that need to be made about their children, resulting in significant stress to the parents and their children.
Joint physical custody In joint physical custody, also known as shared parenting, the child has a legal residence or domicile in both parents' homes, and the lodging and care of the child is shared according to a court-ordered "parenting plan" or "parenting schedule"). In some states joint physical custody means equal or close to equal shared parenting time, while other states define it as an obligation to provide each of the parents with "significant periods" of parenting time so as to assure the child of "frequent and continuing contact" with both parents. For example, states such as Alabama, California, and Texas do not necessarily require joint physical 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.Minnesota Presumptive Joint Physical Custody Group Report under House File 1262 (2008) Appendix B "State Definitions of Joint Physical Custody" Courts generally have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out. 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 parenting time on a yearly basis.
Frequency In 2005/06, about 5 percent of American children ages 11 to 15 lived in a joint physical custody arrangement versus sole physical custody.Bjarnason T, Arnarsson AA. Joint Physical Custody and Communication with Parents: A Cross-National Study of Children in 36 Western Countries , Journal of Comparative Family Studies, 2011, 42:871-890.
Laws States tend to have one of three approaches to joint physical custody.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. A rebuttable presumption in favor of shared parenting as being in the best interest of the child, so that this is the default option with exceptions made when there is child abuse or neglect. In 2018, Kentucky became the first state to enact a shared parenting presumption law.Jason Petrie, Kentucky House Bill 528, LegiScan, 2018. Specification of joint physical custody as an option on par with sole custody, without a legal presumption either way. As examples, Arizona passed such a law in 2012,MASK, Arizona’s Shared Parenting Law Missouri in 2016Tim Curtis, Shared custody law to take effect this month, The Missouri Times, August 17, 2016. and Virginia in 2018.Christian Paasch, New law helps children celebrate Father’s Day in new ways, The Roanoke Times, June 15, 2018. No mention of joint physical custody as a suitable option, although a judge may still grant it if both parents agree or if the judge consider it to be in the best interest of the child.
Parenting schedules There are many different parenting schedules that gives the child equal time with each parent. Some common examples are:
Every other week, also known as "week on, week off". The 2-2-5-5 schedule, where the child spends every Monday and Tuesday with one parent, every Wednesday and Thursday with the other parent, and then every other weekend, as follows: Week Monday Tuesday Wednesday Thursday Friday Saturday Sunday Week 1 Mother Mother Father Father Mother Mother Mother Week 2 Mother Mother Father Father Father Father Father Week 3 Mother Mother Father Father Mother Mother Mother Week 4 Mother Mother Father Father Father Father Father The 2-2-3 schedule, where the child spends e.g. Monday and Tuesday with parent #1, Wednesday and Thursday with parent #2, Friday to Sunday with parent #1, the next Monday and Tuesday with parent #2, the next Wednesday and Thursday with parent #1, and the following weekend Friday to Sunday with parent #2, and so on. The 3-4-4-3 schedule, where the child always spends the same three days with one parent, such as Sunday through Tuesday, and another three days with the other parent, such as Wednesday through Friday, and every other Saturday with each parent. Alternating every 2 days Splitting longer periods of time between the parents, such as two weeks or a month. If the periods are very long, such as a year, it is typically called alternating custody. Children may spend all weekends and some holidays with one parent, but most weekdays with the other parent. This can be useful if the parents live far from each other, or, if one parent always work on weekends.
Bird's nest custody Bird's nest custody is an uncommon form of joint physical 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. The goal of this arrangement is to shift the burden of upheaval and moving between homes onto the parents rather than the children. 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.
Advantages Unless one of the parents is abusive, neglectful and/or mentally ill, the children tend to fare better in a joint physical custody arrangement.Bauserman, R. (2002). Child adjustment in joint-custody versus sole-custody arrangements: A meta-analytic review. Journal of Family Psychology, 16(1), 91-102.