Defining Joint Legal Custody
Beyond the traditional arrangement, a parent is not technically required to have physical custody of your child. A parent may be granted joint-legal custody with the right to make decisions concerning the care, control, supervision, and nurture of the child which include, but are not limited to, religious upbringing, non-emergency health care, education, and general welfare issues. With Joint Legal Custody, the parents are required to cooperate with one another and determine what their children needs are in these areas, and then cooperate to provide for those needs . Perhaps the most important aspect of this type of custody arrangement is that without the cooperation between parents, they are not required to cooperate with one another firsthand. If, for example, the parties can agree upon the religious upbringing of the child, it is then up to the parties to agree to that form of religious upbringing. If the parents cannot agree, the parent residing with the child may then unilaterally make the decision for the child.
All About Joint Physical Custody
Alternatively, "joint physical custody" puts the child into both parents’ homes — a lot. So much time is spent in each parent’s home that the court considers both homes to be the child’s home. Generally, there is a set routine for where the child sleeps, and each parent holds primary handling of the child that night. For example, let’s say that Mom and Dad have joint physical custody, and each live two blocks from each other. Mom has the child with her Monday through Wednesday. Dad has the child with him Thursday through Sunday. The parents share transportation to and from the school. Sometimes the child eats with Dad at home and goes with Mom after dinner. Sometimes it’s the opposite. At least one day a month, the child sleeps at his or her friends’ house. The application of the stated times above is not rigid. The parents are free to work together and adjust home times as they see fit for the child. In this Home State scenario, the Child goes to school with all of his neighborhood friends, spends most days with Mom, but also shares a good amount of time with Dad. But, what if the two parents start lives several hours apart? This would be considered a "Split Custody" situation, which is a good topic for a blog post all on its own later down the road. For now, we will assume that the parents live close enough to continue to allow the child to attend the same school and keep his or her current friends. Joint physical custody with a 50/50 division of time shares may work out perfectly. If one parent will always be responsible for getting the child to school at least 50 percent of the time, it may be even easier to just have the child live with one parent at least 50 percent of the weekday nights. Then, the other parent may have the child every other weekend, one designated night during the week, and alternate extended holiday time sharing.
The Difference Between Legal and Physical Custody
A common point of confusion that can come up in custody and parenting time litigation in Georgia is the difference between joint legal custody and joint physical custody, especially regarding the extent of rights that each parent may have with regard to raising a child. Therefore, I thought it might be helpful to clarify this in an article.
First, legal custody as distinguished from physical custody refers to the ability to make certain decisions for a child. As such, legal custody really is about the issues that directly affect the welfare of the child, such as education, health care, extracurricular activities, etc. The practical distinction between a parent who has sole legal custody as opposed to having joint legal custody with the other parent relates to having the exclusive right to make decisions concerning the life and welfare of a child.
Whereas with legal custody, there is virtually always either a sole or joint legal custody arrangement, there can be differing physical custody arrangements. In other words, a non-custodial parent may have joint legal custody with the other parent without having joint physical custody. Generally speaking, a non-custodial parent can have either sole or joint physical custody with the custodial parent.
An example of how this works is as follows. Suppose that a court awards joint legal custody of a child to two parents but grants sole physical custody of the child to the mother. In this case, even though the father would have the same custodial rights when it comes to making decisions for the child, he would not have the same day-to-day custodial rights as the mother. On a day-to-day basis, the mother would retain the exclusive right to physically keep and control the child.
Conversely, suppose that the court severs joint legal custody with the father, leaves sole legal custody with the mother, and grants joint physical custody of the child to both parents. In this case, the father would have as much overnight and holiday or vacation time with the child as the mother would have. In short, he would have a nearly equal right to physically keep and control the child as the mother.
In many joint custody situations, parents can agree on having joint legal custody and joint physical custody. For example, if both parents are amenable to and capable of sharing parenting responsibilities equally with the child, then this can be awarded by the court. Even where the court is inclined to award sole legal custody to one parent due to a lack of cooperation from that parent, the court may nevertheless award joint physical custody to both parents. What this means is that while only one parent has the exclusive right to make decisions for the child, both parents would have the right to share the care and upbringing of the child.
In perhaps a simpler example, suppose that divorcing parents have three young children, two of who are of school age and one preschool age. Both parents are highly educated successful professionals with good jobs, and both are equally responsible and willing to share parenting responsibilities. In this situation, the court may very well award joint legal custody and joint physical custody to both parents because such an arrangement would be in the best interests of the children. It would give both parents equal rights to make decisions for and share equally in the care and upbringing of the children.
On the contrary, suppose that the divorcing parents have a very young infant and that upon investigating the mother, the court finds that, for example, she has outstanding arrest warrants outside of Georgia, has pending shoplifting charges, as well as pending restitution orders for an alleged theft by shoplifting, and that she is only able to work part-time. In this case, the court could award sole legal custody to the mother, but nevertheless grant joint physical custody to the father. In this way, the father would have equal rights to share parental responsibilities, but he would have the ability to do so with the child on a more frequent and regular basis than the mother.
In short, once a determination is made by the court with regard to the type of legal and/or physical custody that is best for the child, the parties can then work to reasonably facilitate the granting and sharing this custody with each other. It is when one or both parents do not honor the terms and conditions of a custody or parenting time order that the role of an experienced custody lawyer becomes most critical.
The Pros and Cons of Joint Legal Custody
The primary benefit of joint legal custody is that it encourages both parents to play an active role in the lives of their children. When both parents have a say in important issues, they are more likely to remain involved in the day-to-day upbringing of their children even after their divorce or separation has been finalized. In many cases, parenting becomes a cooperative effort that can be beneficial for both parents and children.
However, joint legal custody also presents potential problems. Joint decision-making can create conflict if parents are unable to resolve their differences. In such cases, decisions often need to be made in court, which can be costly and time-consuming. Additionally, children may find themselves caught in the middle of their parents’ disagreements, resulting in them feeling pressured, confused, or guilty.
In order to reap the benefits of joint legal custody, parents need to be able to communicate effectively and make decisions collaboratively. For this reason, some judges might appoint a mediator or parenting coordinator to help parents reach mutually acceptable decisions.
The Ups and Downs of Joint Physical Custody
There are a few things that can help understanding the difference. First of all, joint physical custody is commonly thought of as "50/50" where the child is spent 50 percent of the time with one parent and the other 50 percent with the other parent. This is often a very difficult situation due to school schedules, extra-curricular activities and just having a livable place for the child to stay the appropriate amount of time. The better way to articulate this is that both parents are involved in the child’s life on a daily basis. The second thing is that typically parents do not survive very long in equal alternative time-share arrangements. It is harder than people think.
There are a lot of benefits to having joint physical custody. In this day and age, parents very rarely live without the child to the point where either parent cannot make a parenting decision or be involved in any important aspect of the child’s life. Many of these parents are on the same e-mail threads and group texts ensuring that they both know exactly what is going on with the child. Having two parents involved in a child’s life is good for the child in the overwhelming majority of cases. Children who have two active parents tend to be more adjusted, academically successful and have more emotional support . Argue there is something inherently wrong with a parent who does not want to be part of the child’s life if the child is doing well and is healthy. Both parents should want to be part of their child’s life. This is not an equal time-share consideration, but making sure that each parent is part of the child’s life.
The drawbacks to joint physical custody are that when parents are engaged in a constant battle with each other, each parent does not get to enjoy their time with the child. Joint physical custody arrangements benefit the children when the parents can get along. Parents who do not get along let their problems affect the child. Also, when there is a lot of back and forth between parents, this can be tough on younger children. Some children are better suited for 50/50 custody whilst others are not ready. Older children are also in a better position to handle joint physical custody. The basic difference between custody and parenting time usually (not always) lies in the instability of being moved from house to house. If the parents cannot have joint physical custody, then they need to have more traditional parenting time where there is a consistent schedule of how the child will spend time with each parent. Joint physical custody requires some level of cooperation.
Navigating the Right Custody Agreement
When determining whether the parents should have joint legal custody, joint physical custody, or a different custody arrangement, the court will consider a variety of factors to help it determine the best interests of the child. The court may examine the past relationship of the parties, how each parent has handled conflict in the past, and the nature of their legal relationship prior to the current litigation. If the parents can demonstrate that they had a good working relationship before the litigation began, the court will give them much deference to continue to work together after the litigation is over. Parents who have struggled in the past will need to demonstrate how they have learned to communicate better with each other since the litigation began, and how their plan for the future will avoid the same pitfalls that have plagued their relationship in the past. In other words, any plan that is put forth by a parent needs to demonstrate to the court that the parent is capable of successfully communicating with the other parent after the litigation ends.
The court will extensively review the witness testimony to determine whether each party will be able to communicate respectfully with the other parent for the benefit of the child, and to determine whether the living environment with each parent would have a positive effect on the child. Keeping the child’s life as stable as possible is the ultimate goal of the court when deciding custody. If one parent is deemed to be more likely to encourage a relationship with the other parent, that parent will be more likely to be awarded joint legal custody, even though the child may spend a majority of the time with the other parent. The goal with joint legal custody is to keep the parents involved in the decision making process for the child, even if they are not involved in the child’s daily life.
Resources and Legal Avenues
In general, custody decisions are made and memorialized in divorce decrees, where parents may negotiate the details of their arrangements. For those who do not finalize custody decisions during divorce, though, they may be decided as part of a separate action called a child custody action. Parents in every state typically have the ability to submit a consent order for immediate approval by the judge, or they can request a temporary order, which the parties may request to modify after a period of codified temporary custody guidelines agreed upon by the parties. Parents who cannot resolve custody issues consensually will have a trial or hearing in the presence of a judge, where evidence will be submitted and witnesses examined regarding all relevant custody issues to determine the resolution that is in the best interests of the child . It is important to understand what these different custody arrangements mean, how they are legally implemented, and to whom concerns should be addressed. In broader terms, it is also important for parents to understand the resources available to them, both legal and otherwise, when making these determinations in their lives. For families struggling with making a decision about custody, it is critical to understand all of the resources available to them. For instance, consider engaging in family counseling. Family therapy can help provide structure and support as a family transitions to a more healthy relationship. Parents in conflict over custody may benefit from mediation as well. Counseling and mediation are options offered by many family law courts and allow families time and space to work to resolve conflict amicably. Legal representation may also be of assistance to parents who are unsure how to approach custody issues.