Parents' Rights Under Joint Child Custody Laws

By Victoria McGrath

Parents can mutually work out the details of joint custody and present a written agreement to the court for approval. If you need to change the agreement later, you can seek a modification of the custody order issued by the court. The terms of joint child custody are not set in stone by state law, but all state laws require judges to consider the best interests of the child. A court will generally agree to joint child custody arrangements when parents are able to work together to make legal custody decisions and physical custody arrangements that benefit the child.

Parents can mutually work out the details of joint custody and present a written agreement to the court for approval. If you need to change the agreement later, you can seek a modification of the custody order issued by the court. The terms of joint child custody are not set in stone by state law, but all state laws require judges to consider the best interests of the child. A court will generally agree to joint child custody arrangements when parents are able to work together to make legal custody decisions and physical custody arrangements that benefit the child.

Joint Child Custody

Parents can share joint legal custody, joint physical custody or both. When parents share joint legal custody, they maintain equal rights to make decisions about the child’s education, health and welfare. When parents share joint physical custody, they have equal rights to care for and supervise the child. Parents can negotiate the terms of both joint legal custody and joint physical custody in a custody agreement before they seek court approval. During a divorce, the court approves both joint legal custody and joint physical custody arrangements and includes them in the divorce decree.

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Unmarried Parents' Rights

Married parents share equal parental rights over a child during the marriage and throughout separation unless a judge issues a court order to the contrary. Parents who are not married to each other do not automatically share joint child custody over the child, even if they live together. The court requires unmarried parents to establish paternity of the child, before it rules on joint guardianship or joint child custody. State laws vary. For example, in New York, a child born to unmarried parents has no presumed legal father. The biological father has no legal responsibility to the child or right to custody unless the parents establish him as the legal father. Parents establish paternity by signing a voluntary acknowledgement of parentage or by taking a paternity test. If the unmarried parents live in separate states, the Uniform Child Custody Jurisdiction and Enforcement Act determines which state's law governs the custody of the child.

Joint Legal Custody

Under joint legal custody, parents make major decisions together regarding the child’s education, religious instruction, medical treatment, and general heath and welfare. Each parent has an equal right to make a significant contribution in the decision-making process and final decisions. No individual parent has the right to make important decisions regarding the child without the other parent’s contribution or input. Parents can agree to which types of decisions require both parents' participation and which can be made by a particular parent. If a parent intentionally makes a critical decision without the other parent’s consent or against the other parent’s will, it may violate the joint legal custody agreement established between the parents and approved by the court.

Joint Physical Custody

Under joint physical custody, parents share the duty of care and physical supervision of the child. Physical custody includes the child’s living arrangements, housing, clothing, meals, childcare, extracurricular activities, transportation and daily schedules. Each parent has a right to spend time with the child, supervise the child’s daily activities and be informed of the child’s routine schedule. No individual parent has the right to take the child out of town or out of the country without informing the other parent if it violates the joint child custody order. Under some circumstances, where one parent plans to move out of the state against the other parents will, it threatens the joint custody arrangements because it makes physical custody impossible.

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California Joint Legal & Physical Custody Rights

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Visitation Rights During Separation

No parent possesses a legal right to deny the other parent visitation rights when they are informally separated, yet still married. Married parents share equal parental rights over their child during a separation, unless a family court issues a child custody order to the contrary.

Child Custody Cases During a Divorce

Parents seek child custody orders through the court during divorce proceedings. Courts consider the custody agreement or parenting plan proposal submitted collectively by both parents. The court approves child custody orders that are in the best interest of the child. Parents can request a temporary custody order after they file for divorce and before the divorce proceedings begin. The court can issue temporary child custody orders to take effect prior to the divorce proceedings; then issue the permanent child custody orders as part of the final divorce decree. Even permanent child custody orders can be modified by the court during a future hearing, based on changed circumstances.

Will Sole Custody Affect Child Support?

Courts can order sole legal custody, sole physical custody, joint legal custody and joint physical custody. Sole custody directly affects the amount of child support paid by the non-custodial parent. The parent with sole physical custody is the custodial parent and the parent without physical custody is the non-custodial parent. The non-custodial parent typically pays child support to the custodial parent to cover the child's living expenses.

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