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What is Joint Custody?

While seemingly a straightforward question, "what is joint custody?" is not as easy to explain as it seems. As a divorce mediator I define joint custody as "the separate but equal sharing of parental responsibilities for minor children from both a physical custody and legal custody perspective after a couples divorce." So when it comes to answering the question "what is joint custody" we must concern ourselves with two things: the physical custody and the legal custody as each one of these types of custody are necessary to discuss when developing a parenting plan.

What is Joint Custody Type #1: Physical Custody

As the name suggests, physical custody tells us which parent physically has the children at any given moment and typically is the main issue people think of when asking what is joint custody. For example, it's 9 o'clock in the evening on a random Tuesday - who is physically with the children at that moment in time. In a joint custody situation, that would indicate that each parent would have the children for an equal number of Tuesdays, Saturdays, holidays etc. in any given year or years.

Typical issues discussed when talking about physical custody include:

  • Where do the children sleep during the week and on the weekends for both the school year and the summer vacation?
  • Who has the children on major holidays - both religious and non-religious?
  • How do the children get from Parent A to Parent B when it is time for the others parenting time?
  • Who is responsible for the care of the children when they are sick or there is an emergency or school closing?

So in the case of joint custody from the physical perspective, that would indicate that the children would spend 50% of their time with each parent for any of the aforementioned events. The real question you both have to ask yourselves is does joint custody make sense in the physical sense? While yes there are some who feel that each parent should spend 50% of their time with the minor child, in some cases that may simply not be practical. Perhaps one party has a more demanding job than the other so in this case joint custody by the physical definition may not make sense. Or let's say the children are quite young and they are school aged. Would flip flopping them during the school week from Parent A to Parent B make sense? Maybe, maybe not.

The good news is there are other ways to get to a joint custody arrangement without shuttling the kids all over the place. That's where an experienced divorce mediator can help by providing you with sample parenting plans and worksheets to help you determine if joint custody or some other arrangement is practical in your particular situation. As I tell my clients - you know your children better than I do so I'm counting on each of you to do what's in their best interest, even thought it might not be in yours and you may not be seeing them as often as you'd like. We can use a combination of weekdays, weekends, holidays and summers to get as close to a joint custody arrangement as possible.

What is Joint Custody Type #2: Legal Custody

In the case of legal custody, this tells us who has the right to make legal decisions on behalf of the children such as who can move them out of state and who can change their names. If something were to happen to one of you, the other parent would immediately become the sole guardian and retain full custody of the children. In the case of legal custody, the going in supposition is that unless you say otherwise, you each have joint custody of the children so less time is typically spent on this in mediation than physical custody. So in effect the question of what is joint custody, is answered already in 99% of legal custody cases.

So as you can see the question of what is joint custody centers itself on two things: the physical custody and the legal custody of the minor children. By developing a parenting plan with your children in mind, you can determine if joint custody or some other form of custody is practical in your particular situation.


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