Do Both Parents Need to Live in the Same State to Have Joint Custody?

By Beverly Bird

The term “joint custody” doesn’t lend itself well to an exact legal definition. Few states specify the number of overnights a child must spend with each of her parents before the custody arrangement qualifies as “joint.” Further complicating the issue is the fact that states recognize two different kinds of custody: physical and legal. Joint custody usually means that parents share both physical and legal custody. However, parents might share legal custody but not physical custody of their child, or vice versa.

Joint Legal Custody

Legal custody is the right to make major decisions regarding your child. It does not refer to bedtimes and play dates, but to schooling issues, medical issues and whether you believe your child is mature enough to handle having a driver’s license. If parents live in two separate states, this does not preclude joint legal custody. However, their relationship must be cordial enough that they remain in frequent contact with each other. A parent can make decisions for his child from far away, but if he wants to participate in parent-teacher conferences and attend medical appointments, it might mean investing in considerable travel costs.

Joint Physical Custody

Joint physical custody means your child maintains a home with both parents. Contrary to popular opinion, it does not necessarily mean a 50-50 split between parents’ households. More commonly, children spend about two-thirds of their time with one parent and one-third of their time with the other. Some states, like Utah, have specific criteria defining joint physical custody, at least for child support purposes. Parents in Utah qualify as joint legal custodians only if one parent’s time with the child equals 111 overnights a year or more.

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Practical Considerations

A family court judge is not likely to order a joint physical custody arrangement when parents live in separate states, and with good reason. It’s not logistically feasible. Joint physical custody works best for the children when parents live in close proximity to each other. This avoids uprooting children from one neighborhood -- and, by extension, their friends and lives there -- to go live with another parent for days or weeks at a time. School is another important consideration. A child really can’t spend half her school year in one state and the other half in another state. It would be academically difficult for her, and probably emotionally difficult as well. When parents have joint physical custody in an existing order or decree, and if one relocates out-of-state, many courts transfer custody to one parent or the other to avoid these problems.

Alternative Arrangements

Traditional joint physical custody might be impossible when both parents don't live in the same state, but this does not necessarily mean that the parent living at a distance can’t still have ample quality time. When one parent relocates to another state after divorce and takes her child, courts usually devise a parenting plan where the child spends summers and extended school breaks with the non-custodial parent. However, this can be difficult for an older child. A teenager is not likely to relish the idea of leaving her home and her friends for an entire summer. Depending on how geographically far apart parents are, a child might spend all three-day weekends, half the yearly holidays, and a portion of the summer with the parent who does not live in her home state. This usually works best when parents live within reasonable driving distance of each other.

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Shared vs. Residential Custody


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New Jersey Law on Joint Physical Custody

New Jersey courts don't often order joint physical custody arrangements, but "order" is the operative word. When parents agree that this is what they want for their children, and if they incorporate a joint physical custody plan into their marital settlement agreement, judges will typically sign the agreement into a divorce judgment. The court's resistance only comes into play when one parent wants joint physical custody and the other objects. This requires a trial, and a judge will weigh several stringent factors before ordering joint physical custody over the wishes of one parent.

Separating Siblings With Divorce

Courts in most states are opposed to separating siblings when their parents divorce. Children are experiencing the trauma of their parents' separation, and judges often see parting them from each other as an added cruelty at an already vulnerable time. This doesn't mean, however, that no judge will ever order such an arrangement. It just means that parents have the burden of convincing the court that such divided custody is good for their kids and appropriate to their family's situation.

Reasons to Deny Custody

Divorcing parents can't deny each other custody, but courts can do so. Judges typically do their best to preserve the relationship between a child and both parents, but this doesn't work in all circumstances. Courts rarely order joint custody when parents can't get along well enough to make it work. As a result, one parent ends up with custody and, barring egregious circumstances, the other gets visitation.

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