Shared Custody & Divorce

by Mike Broemmel
Shared custody permits both parents essentially equal access to their children.

Shared custody permits both parents essentially equal access to their children.

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Custody issues oftentimes represent the most contentious aspect of divorce proceedings. As you contemplate a divorce case involving children, understanding the elements of custody determinations is crucial. Shared custody represents one type of custodial arrangement available to courts in different jurisdictions across the United States. Shared custody means that both parents enjoy physical custody of a child on an essentially equal basis. Despite its widespread availability, the laws on when shared custody is ordered in a divorce case vary significantly from one state to another.

Understanding Legal Versus Physical Custody

A court in a divorce addresses two types of custodial issues: legal custody and physical custody. Legal custody references the right of a parent to make major life decisions on behalf of a minor child. These decisions include, but are not limited to, education, health care and religion. Physical custody refers to the parent who actually maintains the child in her residence. "Joint" usually is used in reference to legal custody while "shared" typically is attached to physical custody.

State Laws and Shared Custody

Although many states permit shared physical custody, differences exist between jurisdictions regarding when such an arrangement is permitted. In some states, a preference exists for shared physical custody while in others, the law favors other types of custodial schemes. Some states permit shared custody if requested by the parents, while others impose the arrangement on a family even if the parents object. Other jurisdictions have developed guidelines to be used by judges when determining whether to award shared custody.

Tests for Shared Custody

In some states, courts apply a test when determining the appropriateness of shared custody. An example of such a test is found in New Jersey law. The test is three-prong. First, the parents are required to prepare a parenting plan that establishes the responsibilities of each parent and specific parenting times. Second, each parent is required to have at least two overnight parenting times a week, excluding vacations and holidays. Third and finally, the parents must maintain open lines of communication with each other and be able to jointly make important decisions regarding their children.

Parenting Time Schedules

The theory behind shared custody is that each parent maintains physical custody of the child about 50 percent of the time. A variety of different parenting time schedules exist to further a shared custody arrangement. For example, in one scheme, parents may alternate physical custody week-by-week. In another scheme, one parent may maintain custody a majority of days in a given week, with the other parent enjoying fewer days of parenting time. The following week, the roles reverse. Provided that a shared custody arrangement is deemed fair and provides for a relatively equal allocation of time between the parents, a court is likely to approve an agreement reached by the parents.

Shared Custody and Child Support

On first blush, you might imagine that shared custody eliminates the need for child support because both parents theoretically have the child in their physical care and custody half of the time. In fact, an income disparity of some sort likely exists between the parents, with one parent earning more than the other. In such cases, a child support order may still be established despite the shared custody arrangement.