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Am Jur 2d - Divorce and Separation § 858

IV. Child Custody and Support; Visitation Rights, A. Child Custody; Visitation Rights, 3. Types of Custody, § 858 - Joint custody

Joint custody allows parents to have an equal voice in making decisions and recognizes the advantages of shared responsibility for raising children.[1] An award of joint custody is proper where the arrangement is in the best interest of,[2] and not detrimental to,[3] the child, and where both parents are fit and proper persons to be awarded custody.[4]


The question of whether to award joint custody is not considered in a vacuum, but as part of the overall consideration of a custody dispute. Thus, the factors that trial judges ordinarily consider in child custody cases remain relevant.[5]

Factors bearing on the propriety of an award of joint custody include the agreement of the parties and their mutual ability to cooperate in reaching shared decisions in matters affecting the child's welfare,[6] the geographic proximity of the parental homes,[7] the similarity of the respective home environments, the demands of parental employment, the ages and number of the children, and the relationship of the children to the parents.[8] Joint custody arrangements are improper where the parents do not agree to joint custody,[9] where the parents have different parenting styles and philosophies,[10] or where joint custody is inconsistent with the maintenance of proper parental discipline.[11] When either party concludes that joint custody is no longer viable, the court may terminate the joint custody.[12]

While required to consider joint custody between fit and equally capable parents, the trial court is not required to award joint custody.[13] It may be necessary that the trial court make specific findings demonstrating shared custody is in the best interests of the child before making such an award.[14] In light of the changing nature of the structure of families and challenges to the sweeping application of psychological parent attachment theory, joint physical care issues must be examined in each case on the unique facts and not subject to cursory rejection based on a nearly irrebuttable presumption found in prior cases.[15] In some jurisdictions, a parent requesting exclusive custody has the burden of rebutting the presumption that joint custody is in the best interest of the child by showing that joint custody would be detrimental to the child.[16] Other jurisdictions award joint custody only in exceptional cases,[17] and in at least one jurisdiction there is a presumption that joint custody is not in the best interest of the child.[18]

Practice Tip:

If a shared-parenting order is issued and the order is silent regarding the residential parent and legal custodian status, and the context does not clearly require otherwise, then each parent is a residential parent and legal custodian of the child.[19]


Record failed to establish that mother and father had problems in communication and cooperation such that award of joint legal and physical custody would not be in best interest of their child; designation of father as primary decision maker regarding the child's education obviated most of their conflicts, mother testified that, if the trial court ordered joint custody, she was willing to communicate with the father to coordinate their schedules, and the father testified that he would not unilaterally make important decisions regarding the child and that he would discuss such decisions with the wife. Code 1975, § 30-3-152(a). Bonner v. Bonner, 170 So. 3d 697 (Ala. Civ. App. 2015) .

Alleged lack of communication and cooperation on part of father did not rise to level of sustained noncooperation sufficient to justify modifying joint legal custody of parties' daughter, though mother argued that communications did not improve after trial on legal custody, where only four months had elapsed since that trial, parties were communicating, at least to the extent that they were able to facilitate shared physical custody, by exchanging weekly, if not daily, emails, and superior court had specified that the parents were to use email. AS 25.20.110(a). Collier v. Harris, 261 P.3d 397 (Alaska 2011) .

The mutual ability of the parties to cooperate in reaching shared decisions in matters affecting the child's welfare is a crucial factor bearing on the propriety of an award of joint custody, and such an award is improper where cooperation between the parents is lacking. Shannon v. McJunkins, 2010 Ark. App. 440, 376 S.W.3d 489 (2010) .

Best interest of the child would be served by changing child's primary residence, for school residency purposes, under joint legal custody order from that of ex-wife to ex-husband; child had been late to school and other appointments a number of times as a result of ex-wife's failure to ensure his being on time. Feinberg v. Feinberg, 114 Conn. App. 589, 970 A.2d 776 (2009) , certification granted in part, 293 Conn. 901, 975 A.2d 1277 (2009) .

Trial court did not abuse its discretion by awarding joint physical custody of minor child to mother and father, or by modifying the weekly custody schedule; the trial court found that it was in the best interest of the child for both parents to have joint and shared custody, the child was close to both of her parents, and under the custody schedule imposed by the trial court, the child would not spend more than three consecutive days away from either parent during the school year. LSA-C.C. art. 134 ; LSA-R.S. 9:335 . Theriot v. Theriot, 177 So. 3d 759 (La. Ct. App. 5th Cir. 2015) .

Even if both parents are fit, joint custody should not be awarded where it is impractical or burdensome to the children. Jackson v. Jackson, 82 So. 3d 644 (Miss. Ct. App. 2011) , cert. denied, 82 So. 3d 620 (Miss. 2012) .

Joint custody should not be imposed on embattled and embittered parents who appear unable to put aside their differences for the benefit of the child. Campbell v. Knapp, 17 N.Y.S.3d 555, 2015 WL 5893894 (App. Div. 4th Dep't 2015) .

When joint custody of a child is not possible because of the antagonistic relationship between the parties, it may be appropriate, depending upon the particular circumstances of the case, to award some custodial decision-making authority to the noncustodial parent; the division of authority should be made in a manner intended to take advantage of the strengths and abilities of the noncustodial parent with respect to a particular dimension of child-rearing. Jacobs v. Young, 107 A.D.3d 896, 969 N.Y.S.2d 70 (2d Dep't 2013) .

Father established by a preponderance of the evidence that relocation was in the children's best interests, as required for modification of existing child custody arrangement, under which parties shared joint legal custody of the children with father awarded physical custody and mother awarded visitation, so as to permit father to relocate with the children to North Carolina, where permitting the children to relocate with their father would strengthen the post-divorce family formed by the father, and prospects of a strong post-divorce family with the mother were limited in light of her plans to marry her fiance, given that the older child was estranged from the mother and her fiance. Englese v. Strauss, 83 A.D.3d 705, 920 N.Y.S.2d 365 (2d Dep't 2011) .

Joint custody requires parents who (1) have an ability to communicate with each other; (2) are mature enough to set aside their own differences; and (3) can work together and engage in joint discussions with each other and make joint decisions regarding the best interest of their child. Caber v. Dahle, 2012 OK CIV APP 19, 272 P.3d 733 (Div. 2 2012) .

Minimal degree of cooperation between parents was possible so as to support award of shared legal custody; trial court conceded that case had conflict between parties, but it also found that most contentious issue, relating to physical custody, was resolved by agreement following extensive negotiation and compromise, court also concluded that parent coordinator and co-parent counseling would alleviate some underlying conflicts and promote minimal level of cooperation, and court noted that mother and father were able to negotiate terms of physical custody and that custody evaluator recommended that mother eventually be granted shared legal custody. Yates v. Yates, 2008 PA Super 296, 963 A.2d 535 (2008) .

Finding of fact in judgment awarding joint legal and physical custody, that father was more capable than mother to prepare children for responsible adulthood while simultaneously ensuring that they had the benefit of a fulfilling childhood, was not clearly erroneous; mother heavily favored therapy for older child, who was born with Down syndrome, over playtime and time with family, and mother prevented that child from socializing with the children in father's family and only began allowing her to interact with other children after a hearing in custody proceeding. SDCL § 25-4-45 . Schieffer v. Schieffer, 2013 SD 11, 826 N.W.2d 627 (S.D. 2013) .

Evidence was sufficient to support finding at child custody proceeding that granting parents shared parenting arrangement was unrealistic, based on fact that father visited child only once per month, and not in infant child's best interests; father's own testimony established that his employment limited his ability to visit child more than once per month, given distance between where parents resided, and even one of father's own experts could not explain how shared parenting time would work due to geographic barrier between parties. IC v. DW, 2015 WY 135, 360 P.3d 999 (Wyo. 2015) .

A desire to give four-year-old child equal time with each parent did not justify shared custody arrangement between parties who were unable to communicate effectively or cooperatively resolve disputes during their marriage. Buttle v. Buttle, 2008 WY 135, 196 P.3d 174 (Wyo. 2008) .

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1   Dodd v. Dodd, 93 Misc. 2d 641, 403 N.Y.S.2d 401 (Sup 1978) .
 A court allocates parental rights and responsibilities when it issues a shared-parenting order; the court may allocate parental rights and responsibilities for the care of a child to both parents and issue a shared-parenting order requiring the parents to share all or some of the aspects of the physical and legal care of the child in accordance with the approved plan for shared parenting. Fisher v. Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546 (2007) .

2   Echols v. Echols, 281 Ga. 546, 640 S.E.2d 257 (2007) ; In re Marriage of Ellis, 705 N.W.2d 96 (Iowa Ct. App. 2005) .

3   Roski v. Roski, 730 So. 2d 413 (Fla. Dist. Ct. App. 2d Dist. 1999) (holding that the trial court did not abuse its discretion by awarding sole custody of the children to the mother, based on a finding that shared custody would be detrimental to the children).
 Under a statute which provides that the trial court must order shared parental responsibility for a minor child unless the court finds that shared parental responsibility would be detrimental to the child, the trial court could not award primary parental responsibility to the mother of minor children, solely on the basis of a finding that this award would be in the children's best interest, without also finding that shared parental responsibility would be detrimental. In re Marriage of Barnes, 855 S.W.2d 451 (Mo. Ct. App. S.D. 1993) .

4   Franklin v. Franklin, 470 So. 2d 634 (La. Ct. App. 1st Cir. 1985) ; Church v. Church, 119 N.C. App. 436, 458 S.E.2d 732 (1995) .

5   Maness v. Sawyer, 180 Md. App. 295, 950 A.2d 830 (2008) .

6   In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007) ; In re Marriage of Johnson, 865 S.W.2d 412 (Mo. Ct. App. S.D. 1993) .
 A "track record" of agreement and cooperation between the parents is an important factor to be considered in determining whether granting of joint child custody is appropriate. Maness v. Sawyer, 180 Md. App. 295, 950 A.2d 830 (2008) .
 Because domestic abuse reflects the ability of the parties to listen to one another and respect one another's opinions and feelings, the existence of domestic abuse is a significant factor in determining whether joint physical care is appropriate. In re Marriage of Hynick, 727 N.W.2d 575 (Iowa 2007) .

7   Lamb v. Wenning, 600 N.E.2d 96 (Ind. 1992) ; Belandres v. Belandres, 58 A.D.2d 63, 395 N.Y.S.2d 458 (1st Dep't 1977) .

8   In re Marriage of Burham, 283 N.W.2d 269 (Iowa 1979) ; Beck v. Beck, 86 N.J. 480, 432 A.2d 63, 17 A.L.R.4th 997 (1981) .
 Joint physical care is most likely to be in the best interest of the child where both parents have historically contributed to physical care in roughly the same proportion; conversely, where one spouse has been the primary caregiver, the likelihood that joint physical care may be disruptive on the emotional development of the children increases. In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007) .

9   In re Marriage of Fennelly and Breckenfelder, 737 N.W.2d 97 (Iowa 2007) ; Eickbush v. Eickbush, 2007 WY 179, 171 P.3d 509 (Wyo. 2007) .

10   In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007) ; Eickbush v. Eickbush, 2007 WY 179, 171 P.3d 509 (Wyo. 2007) .

11   Gall v. Gall, 336 So. 2d 10 (Fla. Dist. Ct. App. 2d Dist. 1976) .

12   Blair v. Blair, 34 Ohio App. 3d 345, 518 N.E.2d 950 (5th Dist. Tuscarawas County 1986) .

13   Cook v. Cook, 280 Ga. 768, 632 S.E.2d 664 (2006) .

14   Wetzel v. Wetzel, 1999 ND 29, 589 N.W.2d 889 (N.D. 1999) .
 When the parties do not agree to joint custody, the trial court may place the child in joint custody only after finding that joint custody is in the best interests of the child. Zahl v. Zahl, 273 Neb. 1043, 736 N.W.2d 365 (2007) .

15   In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007) .

16   Rosenfeld v. Rosenfeld, 529 N.W.2d 724 (Minn. Ct. App. 1995) ; In re Marriage of Barnes, 855 S.W.2d 451 (Mo. Ct. App. S.D. 1993) .

17   Petrashek v. Petrashek, 232 Neb. 212, 440 N.W.2d 220 (1989) .

18   Lumbra v. Lumbra, 136 Vt. 529, 394 A.2d 1139 (1978) .

19   Fisher v. Hasenjager, 116 Ohio St. 3d 53, 2007-Ohio-5589, 876 N.E.2d 546 (2007) .

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