• Joint Custody

    Joint custody allows parents to have an equal voice in making decisions and recognizes the advantages of shared responsibility of raising children. Joint custody is a case specific arrangement between two parents after divorce proceedings have been finalized whereby both parties retain custody of the child and jointly participate in reaching major decisions affecting the child’s welfare. The court determines the appropriateness of joint custody on a case-by-case basis. Joint custody is different from the situation where one parent is awarded custody and the other parent is awarded visitation rights. In the visitation situation, only one parent has the right to exercise both legal and physical authority of the child. Joint custody is made up of both legal custody and physical custody. Legal custody is where the parents have the right and obligation to make decisions about the child’s upbringing such as schooling, religion, medical care and other things. Physical custody means that a parent has the right to have the child live with him or her. The distance of the parents’ homes to each other should not be the determining factor when the court considers awarding legal custody. A court can award sole legal custody to one parent, while at the same time award joint physical custody to both parents. The court will determine that joint legal custody is only appropriate where parents show a willingness and ability to share the rights and responsibilities of raising the child. Joint custody does not mean nor require a 50-50 physical sharing of the child. Instead, typical joint custody arrangements will name one parent as the primary custodial parent and then time will be shared with the non-primary custodial parent.

    In determining the appropriateness of an award of joint custody, the court will consider whether or not the arrangement is in the best interest of the child. A number of factors will be considered when determining what is in the best interest of the child, but the main factor in awarding joint custody is the agreement of the parents. The awarding of joint custody depends largely on the ability of the parents to communicate with one another. It is important for parents who draw up the joint custody agreement, that they make a schedule that is effective for both parties. It is also preferable that the parents include a clause in the agreement that provides for the possibility that one parent might move out of the state at some point during the child’s life. Other factors the court will consider in the whether or not to award joint custody include:

    - How close geographically the homes of the child’s parents are to each other

    - Similarities of the different home environments

    - Work hours of each parents

    - The desires of the child or children of a suitable age
    Some courts have held that joint custody agreements are improper in certain situations. Examples of where the court has found joint custody improper are:

    - Where the parents have not agreed on a custody arrangement

    - The relationship between the parents is so strained that they are unable to make shared decisions that benefits the child

    - Where exchanges of physical custody between the two homes of the parents would seriously disrupt the child’s educational and/or social life

    - If the homes of the two parents are so far away from each other that it negatively affects one or both parents in equally sharing their parental responsibilities

    - There is a history of child abuse, spousal abuse, domestic violence or parental kidnapping

    The power to award joint custody differs depending on the state. However, in order for a court to hear a petition for joint custody, the child must be physically present and a resident or living in the state. A child’s residency is based upon the parent with custody who has possession of the child. In some states, joint custody is expressly provided for in the state statute laws and has specific guidelines for the court to consider for joint custody to be awarded. Other states allow courts to assess the facts of the situation and give them the power to award joint custody. It is also important to be aware that some states express a strong disapproval of joint custody. The states that oppose joint custody as an arrangement for children of divorced parents believe joint custody disturbs the stability of the child’s life. Parents will have to overcome this presumption by the court to not award joint custody. However, the court will always look to see whether or not joint custody is in the best interest of the child. Some of the factors courts have considered when applying the best interest of the child standard are:

    - Each parent must be fit and suitable to take custody

    - The parents must agree to take joint custody and be able to reach shared decisions in the child’s best interest

    - The parent’s homes must be close together so that the child’s school and other routines are not greatly disrupted

    - The environment in each parent’s home must be similar

    - The psychological or emotional needs of the child will not suffer if joint custody was to be awarded

    - How many hours a week each parent works and whether or not their schedules allow for a joint custody arrangement

    - The child or children must not be strongly opposed to the idea of joint custody

    - The financial stability of each parent

    - The ages and number of children

    Joint custody can be reversed if the court finds that there has been a break down in cooperation and communication between parents with regard to decision making in the best interest of the child or children.
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