Shared Parenting Information Group (SPIG) UK
- promoting responsible shared parenting after separation and divorce -
Joint custody - questions & answers (US)
This list of FAQs was prepared by Rick Kuhn to assist in lobbying for divorce reform in Maryland USA in 1996 and to answer the objections raised by the opposition. Although intended for US readers, the points raised have world-wide generality.
New data on joint custody and shared parenting is available at:
Children's Rights Council of Maryland
What is joint custody?
There are two kinds of joint custody, legal and physical. Joint legal custody gives the non-residential parent the right to participate in major decisions about the children's upbringing and to view various records. In the traditional sole custody arrangement, the non-custodial parent has a right to a limited amount of contact with the child, and the requirement to pay child support, but is in many ways legally equivalent to a stranger. For example, a non-custodial parent cannot access his or her own child's medical records without the custodial parent's permission. Joint legal custody does not affect the child's living arrangements. Often it is granted with the traditional residence arrangement, in which the child lives with one parent but is permitted to visit the other parent four days per month.
With joint physical custody (also called shared parenting), the child lives with both parents, often on an alternating week basis. Joint physical custody is usually defined as a schedule where the child has at least a 30/70 time share between parents, although 50/50 arrangements are common (Ricci, 1981). Joint physical custody is almost always accompanied by joint legal custody.
Who has joint custody?
Joint legal custody is very common, but no published statistics are available. In some states, courts routinely grant joint legal custody unless one parent is clearly unfit.
Probably about one out of seven divorced families had joint physical custody in the early 1990s, but the number appears to be increasing gradually. One large random-dial telephone survey found 13% of families using 50/50 joint physical custody while a survey the previous year had found 12% (Donnelly and Finkelhor, 1993). The National Center for Health Statistics compiled data on child custody awards in 1989 and 1990 from 19 states, finding 15.7% of the custody awards for 1990 specified joint physical custody, defined as at least 30% time share (Clarke, 1995). However, there was wide variation among states, from a low of 4% in Nebraska to 44% in Kansas. Among states reporting for both 1989 and 1990, there was a 2 point increase from 1989 to 1990 (Clarke, 1995). Note that the 13% figure from the telephone survey reflects all years prior to 1992 while the NCHS figure of 15.7% is for new custody awards in 1990 only. Joint physical custody is more common among college-educated parents (Maccoby and Mnookin, 1992).
How does joint custody affect children?
By a wide margin, the available research has found joint physical custody to be better for children than sole custody on a variety of measures (e.g. Buchanan, Maccoby & Dornbush, 1991; Burnett, 1991; Ilfeld, 1989; Lerman, 1989; Noonan, 1984; Rockwell-Evans, 1991), while the rest shows no difference between the two (e.g. Kaufmann, 1984; Mann, 1984; Trevisano, 1982). The critical factor appears to be conflict between parents. When there is a high degree of conflict between parents, joint custody and sole custody produce similar outcomes for children. With relatively little conflict between parents, joint custody is associated with better outcomes for children, i.e., on average they have fewer emotional problems, less delinquency, and do better in school than children in sole custody.
Does joint custody increase conflict between parents?
No. Conflict is either reduced or is the same with joint custody (Albiston et al., 1990; Arditti, 1992; Buchannan et al., 1991; Burnett, 1991; Greiff, 1979; Kline et al., 1989; Luepnnitz, 1986; Maccoby et al., 1990). By definition, custody fights are conflicts over who will raise the child, so the reduction in conflict with joint custody may result from the continued participation of both parents in raising the child. Also, joint custody appears to result in less re-litigation between parents (Dudley, 1991; Emery and Wyer, 1987; Emery, Matthews, and Wyer, 1991; Luepnitz, 1986).
How does joint custody affect child support?
Joint legal custody has no effect on financial child support calculations if one parent has sole physical custody. With joint physical custody there is still a payment of child support from the higher income parent to the lower income parent, usually determined by a sliding scale based on time with each parent. State guidelines are normally constructed so that the financial support going to the child is the same for joint physical custody as for sole physical custody. Because both parents provide for the child directly with joint physical custody, the payment between parents may be less, but the material needs of the child are provided for as well or better with joint custody as compared with sole custody (Arditti, 1992; Emery and Wyer, 1987; Emery, Matthews, and Wyer, 1991; Luepnitz, 1986; Shrier, Simring and Shapiro, 1991).
Is joint custody a new phenomenon?
No, although it was rare in the past. Divorced families in times past sometimes worked out arrangements that were equivalent to modern joint custody (Ricci, 1981). For example, the Maryland Court of Appeals considered a case in 1934 in which the division of time between parents was equivalent to joint physical custody (McCann v. McCann), although the term joint custody had not yet been invented. As maternal preference laws were found to violate the 14th Amendment guarantee of equal protection under the law in the 1960s and 1970s (Roth, 1976), joint custody began to increase.
How do courts determine when to award joint custody?
There is a great degree of variation among states. Joint legal custody is routine in some states, but joint physical custody is not, and the factors considered by the court for joint physical custody vary significantly among states. Anyone considering joint custody should contact a local attorney regarding this question. About 90% of divorce cases are settled out of court, though, and most joint custody is established this way. Judges will rarely change an arrangement that has been established by the parents.
The legal status of joint custody may eventually change. Supreme court decisions have found that "the interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment. (Santosky, 455 U. S., at 774) " (quoted in M.L.B. v. S.L.J, decided December 16, 1996). Because a fundamental right cannot be denied without a compelling state interest that cannot be achieved by any less restrictive means, some legal scholars believe that, in the absence of abuse or neglect, parents have a right to both legal and physical joint custody (Canackos, 1981; Robinson, 1985). This theory has not been tested in court.
What states have a preference for joint custody?
Preferences or presumptions for joint custody take a variety of forms. In many cases, the wording of statutes is vague and imprecise, not clearly specifying whether joint physical or legal custody is intended. The categorization of statutory preferences and presumptions for joint custody is derived from 1996 research by the Department of Legislative Services, Virginia General Assembly (courtesy of Murray Steinberg, Family Resolution Council, Richmond).
Preferences by case law: Georgia and Kentucky. The opinion of the Georgia Court of Appeals is noteworthy. In a unanimous opinion, presiding judge Dorothy T. Beasley stated:
Although the dispute is symbolized by a 'versus' which signifies two adverse parties at opposite poles of a line, there is in fact a third party whose interests and rights make of the line a triangle. That person, the child who is not an official party to the lawsuit but whose well-being is in the eye of the controversy, has a right to shared parenting when both are equally suited to provide it. Inherent in the express public policy is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgement and experience. The child does not forfeit these rights when the parents divorce.
["In the interest of A.R.B., a child", Georgia Court of Appeals, Case No. A93A0698, July 2, 1993. Subsesquently heard by the Supreme Court of Georgia, which upheld the Court of Appeals finding that, according to public policy of Georgia, joint custody was in the best interests of children when both parents are fit.]
Presumption: Florida, Idaho, Iowa, Minnesota, Montana, New Hampshire, New Mexico, Texas, Washington, D.C.
Preference: Kansas, Louisiana.
Best interests (presumed when it is found to be in the best interests of the child): Massachusetts, New Jersey.
By agreement (presumed when it is agreed to by both parties): California, Connecticut, Maine, Michigan, Mississippi, Nevada.
Legal conclusions (presumed when legal conclusions indicate): Delaware.
Originally published - October 1996
Received - 6 March 1997
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