Who Qualifies for Joint Custody of a Child?

By Beverly Bird

When they realize divorce is imminent, many parents hope to have joint custody of the children. The term "joint custody" is more complicated than it seems on the surface, however. It can mean different things in different states, but more often than not, it refers to legal custody, which has no bearing on how much time your child spends with you. By any name, courts typically want some assurances before they order it that it’s going to work out. You'll probably have to ask for it in your divorce filings because judges are sometimes reluctant to order joint custody if parents have not expressed a desire for it, or if parent is adamantly opposed to it.

Legal Custody

Legal custody refers to the decisions you and your spouse would have made together if you remained married. Should Junior have a car when he gets his driver's license? Should his little sister attend private or public school? Is orthodontia necessary, or is it an expense that might be avoided? Legal custody refers to these decisions and many others – the important, fundamental choices parents must make when raising children. Joint legal custody means that after your divorce, these decisions will be made much as they were before. You and your spouse will confer, debate and arrive at a conclusion. If you and your spouse ask the court for joint legal custody as part of your divorce, the judge is going to want to know exactly how you plan to go about it when you no longer live together. Many states require parents to file parenting plans as part of the proceedings, so you can include these details in your submission. If the judge grants your request for joint legal custody, he might implement a tiebreaker system for occasions when you simply can't agree, or assign certain decisions to each parent.

Physical Custody

Joint legal custody does not mean your child will spend half his time with you and half with your spouse, so if this is what you want, you'll also need to explain in your parenting plan where he's going to live and on what days. A judge may be more likely to approve your agreement for shared physical time with your child if you pay attention to details. For example, you can explain who will be responsible for transportation and getting your child back and forth between your homes. You can also discuss how you're going to deal with holidays and special occasions, and present the court with a schedule laying out exactly how you're going to divide your child's time.

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Even if your parenting plan includes every possible detail a judge might question, courts will typically want even more assurance that a joint custody arrangement will benefit your child. Typically, the most important qualifying factor is whether you and your spouse can get along well enough to cooperatively co-parent after your divorce. If one of you vehemently opposes the other's request for joint custody, this might be an indication that the arrangement won't work. Some state courts might also require that you and your spouse live in relatively close proximity to each other, particularly if you're sharing physical custody. Judges usually don't want to uproot your child from his school, his playmates and his community to send him to live with you in a different county roughly half his time. Another key factor with respect to shared physical custody is your financial situation – you'll need sufficient incomes to essentially provide two homes for your child. This means two bedrooms complete with all the same conveniences so he's equally as comfortable and settled at both locations.

Post-Divorce Issues

Some states, such as Arizona, require periodic reviews after you're divorced to make sure your joint custody arrangement is still working out. The court might also ask you to include provisions in your parenting plan about how you'll handle it if any future disputes arise, such as through mediation or counseling.

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Joint Custody Arrangements That Work


Related articles

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

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.

Shared vs. Residential Custody

In most states, two kinds of custody apply to all separating families: legal and physical. Legal custody refers only to major decision-making, and physical custody refers to the parent with whom a child lives. A parent with sole physical custody is sometimes referred to as the residential or custodial parent; this is the parent with residential custody. When a child lives a relatively equal amount of time in each parent’s home, this is referred to as shared custody, also often called joint custody.

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.

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