Joint Physical Custody: Parenting in a Divorce

Nothing taxes the wisdom of a family court judge so much as custody and visitation. When divorcing spouses do battle, generally they make war over the terms and conditions of the marital property settlement and/or child custody and visitation. Battling about the property settlement means fighting about money; warring about child custody and visitation means slugging it out with a spouse about a child who has no or very little say about the outcome. Child custody and visitation battles become so terrible because a child is, not only the object of limitless love, but also the symbol of all the hope and dreams of a marriage crashed on the rocks. Unlike the biblical King Solomon (whose wisdom resolved history’s first custody dispute), a family court judge makes his or her determination based on the modern-day gold standard: the best interest of the child.

When parents cooperate, judges now are far more receptive to the idea of joint physical custody by both parents. Joint physical custody, as the term is most frequently used, means the child lives with both parents, rather than with one custodial parent, who usually is the child’s mother. Joint physical custody almost always also means joint legal custody; together, joint physical custody and joint legal custody place the child, if not equally then at least jointly, in the orbit of both former spouses. "In recent years, shared or joint physical custody has gained tremendous popularity as a means of care for children after a divorce," writes Roz Zinner of Divorce and Family Mediation Services of Glen Burnie, Maryland.

Support for joint physical custody increased in the mid-1970s, and it is significant migration in the thinking of judges and courts on child custody and visitation.

According to one estimate, about 10 percent of the children of divorced families are living in a joint physical custody arrangement, and, despite problems inherent in this routine, interest in the regime appears to be increasing.

Shared or joint physical custody refers to the right of a parent to have the children reside in that parent’s home. In this routine, which invites many varied and creative forms, a child has two primary residences. Very often, even when one parent is custodial, both former spouses share joint legal custody regardless of where the children are living. Shared or joint custody is at the opposite end of the spectrum from sole custody, wherein one parent has both physical and/or legal possession of the child to the exclusion of the parent.

Joint physical custody does not eliminate child support, contrary to what some people think. According to the American Bar Association, "[i]f the parents have joint physical custody with the child spending a substantial amount of time with each parent, and if the parents have approximately equal incomes, it is possible neither pays support to the other. The father and mother will pay the child’s day-to-day expenses when the child is in the respective homes. The parents, however, will need to coordinate payments on major expenses such as camp, school, and insurance."

This income equality is generally the exception, not the rule, because men generally earn more than women. "If there is a significant difference in the parents’ incomes, the parent with the high income probably will still make payments to the other parent or pay more of the child’s expenses, but the amount paid probably will be less than the guideline amount because of the joint physical custody arrangement."



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