Individuals who have divorced or separated may need to know the answer to the question, “How does custody work?” Custody refers to the legal and physical relationship between a parent and child. The power to make decisions on the child’s behalf is one aspect of custody. Another aspect of custody is the child’s residing at a parent’s home. Historically, when parents divorced, courts would award physical custody to the child’s mother. The preference for the mother was known as the “maternal presumption.”
Under the maternal presumption, it was presumed that mothers were inherently superior caregivers to children. Modern law places emphasis not on the maternal presumption, but rather on the best interests of the child. If a court finds that a child’s best interests are served by having both parents retain custody, a court will divide custody. This allows both parents to play a role in the child’s development.
What is Joint Custody?
Individuals often are not familiar with the answer to the question of what is joint custody. The definition of joint custody is a child custody arrangement in which each parent has custody rights.
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- Dual custody and split custody refer to arrangements in which each parent has some custody rights.
- When joint custody is awarded on a 50%/50% basis,the arrangement is often referred to as a half-custody arrangement. The parents have equal custody rights.
A joint custody arrangement allows both parents to share in making legal decisions on the child’s behalf. A joint custody arrangement also allows for the child to spend time at both parents’ residences. This arrangement is beneficial in that the child is allowed to maintain regular contact with both parents.The arrangement can be stressful to a child, however. A child’s having to spend some days at one parent’s residence and other days at the other parent’s residence can disrupt the child’s need for stability.
What are Some Differences Between Shared Custody and Joint Custody?
Many people often apply the terms “shared custody” and “joint custody” as if they mean the same thing. However, each term refers to a separate type of custody. Part of the reason for the confusion is because some states will also use them interchangeably. As such, it is important for you to keep in mind that they are actually two different forms of custody arrangements.
In general, the main point of joint custody is to provide both parents equal control over decisions regarding a child’s upbringing and to split the time that a child spends living with each of them.
On the other hand, shared custody focuses on how much contact the child has with each parent. Basically, shared custody aims to give the parents the opportunity to split the time that the child physically lives with them as close to 50/50 as possible.
If these definitions still sound fairly similar to you, that is because shared custody is a very specific subtype of joint custody. Therefore, in order to remember the difference between the two, the main thing to remember is that joint custody is more concerned with making legal decisions for the child, whereas shared custody is about how much time the parents get to spend with their child.
Why Should I Want Joint Custody?
As discussed above, joint custody gives both parents the opportunity to spend time with and to help raise their child. Oftentimes, it can be difficult to decide on custody arrangements since each parent usually wants their child to live with them, but they cannot due to a divorce or separation.
Joint custody provides a solution to this issue by allowing the parents to split decision-making rights (i.e., joint legal custody), and to have either equal amount of time or close to an equal amount of time with their child (i.e., joint physical custody).
Additionally, joint custody affords the parties certain parental rights. However, the types of parental rights that each parent is granted will depend on how joint custody is awarded.
For example, if the parents agree to have joint legal and physical custody, and the court approves their decision, then their parental rights will be evenly distributed. In contrast, this will not be the case if only one parent has full physical custody, but they maintain equal joint legal custody.
The following list provides some examples of parental rights in accordance with each category of joint custody, which includes:
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- Joint Legal Custody: Parents with joint legal custody retain rights to make decisions about the child’s upbringing, such as their education, religious instruction, legal status, and what kind of medical care they receive.
- Joint Physical Custody: On the other hand, joint physical custody refers to rights regarding where the child lives and how much time they spend with a parent. In most instances, joint physical custody means that the parents will split the maximum amount of time that they can live with a child. The parents may also opt to make different living arrangements (e.g., the child lives with one parent during the school year and the other in the summer).
Again, parents who are awarded both legal and physical joint custody will be able to exercise all of the above rights unless a change in circumstances occurs.
Why Should I Want Shared Custody?
Much like its name, shared custody allows both parents to share physical custody of their child; either equally or almost equally. Due to the amount of time that the child spends living with each parent, the law will recognize both residences as the child’s legal home.
Although the parents may also decide to share legal custody as well, this is not the primary goal of shared custody.
Similar to joint custody, the type of parental rights that shared custody provides the parties will depend on the circumstances and the specific laws of each state. The main takeaway here is that both parents will have a right to live with and have contact with their child.
As for the rights afforded to parents who have legal custody, they are the same as the ones that were discussed under the joint custody section above. Again, the difference with shared custody is that this type of custody arrangement is more concerned with securing the rights to physical custody than it is with the parental rights for legal custody.
One final point worth mentioning about shared custody is that it usually works best in cases where one of the parties either cannot or does not want to bear the responsibility of having to make legal decisions regarding the child’s upbringing. The 50/50 time-share helps to balance out the rights one parent may lose when giving up legal custody.
What is the Best Way to Get the Custody Arrangement I Want?
The type of custody arrangement that the parties choose really depends on the situation and how willing they are to cooperate with one another. In some instances, the decision may also be based on what is allowed by the laws of a particular state.
For instance, joint custody works best when the parents can maintain a good relationship, are able to civilly communicate with each other, and are willing to work together on child rearing decisions, all while keeping in mind their child’s best interests.
It will do neither party any good, nor the child, if the parties are not realistic in managing their expectations. For example, if the parents live in two separate countries, asking the court to grant shared custody may not be the wisest option. The court may not approve such a request if it would place a heavy burden on the child and the parties’ finances.
It is also important to consider how the court makes its decision regarding the final child custody order. The main concern for the court is the wellbeing and safety of the child. Thus, if only one parent has a stable living arrangement and a job, then it is more likely that the court will grant that party greater rights over the child.
The court may also consider other factors, such as how close the parents live to the child’s school, whether a parent will be present to take care of the child (e.g., do they work long hours?), and if the child has special medical needs that may require greater attention or quicker access to medical facilities.
In cases where the parents cannot reach an agreement, they should consider attending family mediation sessions. This is especially true when the parties have issues communicating.
Generally speaking, mediation offers many benefits, such as the fact that it is usually less expensive than going to court, it can save time, it often helps the parties to compromise, and it promotes peaceful and open channels of communication.
Finally, if one of the parents experiences a change in circumstances (e.g., they were fired, got remarried, are relocating for a new job, etc.), then the parties can ask the court to amend their custody agreement, so that it reflects the necessary changes.
Do I Need a Lawyer If I Have Questions about Shared Custody or Joint Custody?
Family law matters that involve child custody issues can be challenging and emotional for all parties to the case. However, hiring an attorney can potentially make this experience less stressful since they will be responsible for managing the legal aspects of your case and can ensure that you are following the necessary laws. Removing legal pressures will also give you more time to focus on making the right choices for your family.
Therefore, if you have any questions about either shared or joint custody arrangements, then you should consider contacting a local child custody lawyer for further legal guidance.
In addition to the benefits already mentioned, an experienced child custody lawyer can offer you legal advice about your parental rights and can help you with developing a plan of action to resolve your custody issue. Your attorney will also be able to assist you with obtaining the type of custody arrangement that is best suited for you and your child.
Finally, if for some reason your circumstances have changed, an attorney can help walk you through the process of modifying your child custody agreement.
