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Understanding Joint Child Custody (Legal & Physical) | 3 Step Divorce

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Divorcing couples with children face complex and often times contentious issues in child custody. Deciding who makes the legal decisions for the children, where they live, and fashioning a visitation schedule can be very difficult. This issue of child custody becomes even more difficult when both parents want custody and parenting time and are unable to make decisions amicably. Moreover, adjusting to life after a divorce can be especially difficult for the parent not awarded primary physical custody of his or her children. A predetermined visitation schedule may now be the new norm for a parent used to seeing his or her children on a daily basis, and many parents find this routine a poor substitute.

A growing number of advocates across the nation are calling on the legislatures in their respective states to enact so-called shared-parenting laws. These laws would essentially mandate that children of divorced parents spend equal time with both parents; these laws would not apply in cases involving substance abuse or domestic violence.

Divorce usually meant mother got sole custody of the children and father visited the children every other weekend with some holidays. At some point father would tire of this routine and drift out of his child’s life. It is no longer practice for mother to have sole custody; fathers are receiving custody of the child.

Types of Child Custody

There two kinds of child custody: legal custody and physical custody. Physical custody allocates where the child will live, whereas legal custody gives the custodial parent the right to make decisions for the child's benefit. One parent retains physical custody of the child, while sharing joint legal custody with the other parent. The noncustodial parent is typically required to pay child support, and visitation is arranged.

This custody and visitation routine appears to be slipping by the wayside. The guiding principle regarding child custody now decides physical and legal custody based on the best interest of the child standard. Both parents are encouraged and expected to be equally involved in their child’s life.

New Outlook Child Custody

This new attitude invalidates the divorce court philosophy that dominated most of the 20th century where most children ended up living with their mothers after their parents’ divorce. This philosophy conformed to gender norms that viewed mothers as better caretakers of young children. Courts then were in the sway of the so-called tender years doctrine, the 19th century family law legal principle that presumes that during a child's younger years, under the age of four, the mother should have custody. Joint custody is a better solution for the child. It is important to promote shared parenting in every jurisdiction.

Best Interests is the Deciding Factor

Whether there is legislation encouraging joint custody or not, the best interests of the child should always be the focal point of any custody determination. There are many factors that go into deciding custody. Judges may consider the wishes of the child, if he or she is old enough, the parent who provided the majority of the care for the child, any adjustment the child will have to school, and interactions with family members. Each custody determination is specific to each individual case. Parents can also go through mediation to help them come to an agreement on custody issues prior to going to court.

Understanding Joint Custody

Parents do not always favor joint child custody. Custodial parents have more power than before making it difficult for non-custodial parents to be in their children's lives. Shared-parenting legislation seems poised to become the new norm.

A law was passed in the state of Arkansas mandating that divorced parents should each have a reasonable equal division of time with their children. Similarly, state legislatures in both Connecticut and Maryland have created special commissions to study the issue of introducing shared-parenting provisions. Shared-parenting advocacy groups are gaining the attention of many state lawmakers.

Children have the right to have both parents in their lives and both parents have equal right to raise their children. Attitudes toward shared-parenting has changed, especially where the law is concerned, non-custodial parents are no longer accepting the status quo of unequal treatment in family court and gender roles are not as influential as they once were. Joint child custody is becoming the new norm. Prior to 1986 almost 80 percent of mothers were granted sole custody. By 1994 that number dropped to 74 percent; shared custody rose 7 percent in Wisconsin Family Court between 1986 and 1994. In the same state where mothers were granted sole custody, the increase in shared custody went from 14 percent to 42 percent in 2008. Over the last decade, more judges are in favor of shared-joint custody over mother-sole custody.

Unfortunately, not much has changed with fathers and sole custody of their children. Shared custody remains more likely for higher income families, while the gender and age of the children involved do not carry much weight. Custody patterns are changing because of transforming social norms and the new processes by which custody is determined.

Shared custody is better for the child’s living situation. Some will oppose shared-parenting but having a more flexible custody arrangement with both mom and dad is in the best interest of the child. There may always be those who oppose shared custody. It is important to understand what joint and share custody really means.

Joint custody advocates argue that children should have equal time with each parent. Shared custody focuses more on time shared with children; joint custody involves equal rights in decision making, and the individual responsibilities of each parent.

In shared custody, parents enjoy the legal right to physically share the children. Shared custody typically means that the children lives with each parent equally and provides for the children’s daily needs for 50 percent of the time. Shared custody does not need to include an equal right to make important decisions for the children, and in many cases, those decisions fall on the shoulders of the parent who has physical custody of the children. If both parents do share decision-making, they usually do so together.

In joint custody, by comparison, parents share in every aspect of raising their children. The two must meet frequently in order to make decisions together so a caring and understanding relationship is crucial. This type of custody allows the parents to control the custody agreement but divorcing parents should realize ahead of time that neither parent could legally modify critical aspects of the children's lives. Both parents must reach mutually agreed upon decisions about education, health care and other areas that help shape the children.

Shared custody may be more appropriate when one parent is away from home for long periods of time; if one parent is financially unstable; or if one parent is injured, ill, or otherwise unable to care for their children. Joint custody may be more appropriate when both parents live and work in the same area, or when the children are teenagers.

Joint child custody is not an easy undertaking. It takes a great deal of hard work, dedication, and compromise. Children grow and their needs change from year to year. Parenting agreements that were created at the time of divorce may not work and should be reviewed and updated if necessary.

A common misperception among parents is the notion that joint custody means equal parenting time. Not so. Parenting time for the non-custodial parent is the same in both sole and joint custody situations. Another common misperception is that an award of joint custody will prevent the custodial parent from moving out of state with the children. A custodial parent cannot unilaterally move out of state absent agreement of the other parent or an order of Court, regardless of whether he or she holds joint or sole custody of the child.

For many parents going through a divorce, the custody determination can be one of the most contentious and emotional aspects. For best results, parents must look at the best interest of their children, not necessarily what works for either parent.

Custody Evaluations

If the parties cannot agree on custody, and mediation is unsuccessful, the court orders a custody evaluation. With a custody evaluation, the Court appoints a custody evaluator, who is a psychiatrist or psychologist with special training and expertise in custody issues. The evaluator will meet with each parent to conduct psychological testing which may include testing for the children. The evaluator will observe each parent interacting with the children and interview the children, and others who are familiar with the family (i.e. teachers, therapists, doctors). After the interview, the custody evaluator presents a detailed report to the Court, with specific recommendations about custody and visitation arrangements that are in the children's best interests.

The custody evaluator is a court witness and a judge will place great weight to the evaluator's recommendations in an instance where custody cannot be agreed to by the parents. The cost of the custody evaluation is usually borne by the parties, in proportion to their respective incomes. If either mother or father does not agree to the custody evaluator's recommendations, a second custody evaluation, with a new evaluator, may possibly occur. The cost of the second evaluation is always borne by the party requesting it.

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