Am Jur 2d - Divorce and Separation § 859

IV. Child Custody and Support; Visitation Rights, A. Child Custody; Visitation Rights, 3. Types of Custody, § 859 - Joint custody-Divided or alternate custody

A court which is charged with the duty of awarding the custody of a minor child has the power to divide or alternate the custody of a child between the parents or other persons.[1] In determining whether to divide or alternate the custody of a child, the primary consideration is the welfare and best interests of the child.[2]

Definition:

A "split rotating custody" agreement, as it implies, is synonymous with a rotating custody agreement where there is shared parental responsibility, but no primary custodial parent has been designated, and the parents alternate custody of the child.[3]

Courts have recognized a preference for joint custody arrangements, and split custody arrangements are disfavored.[4] Divided custody is particularly inappropriate where the parties cannot cooperate in decisions affecting the children,[5] or where the parties do not live in close proximity to each other.[6] Divided custody often requires both parents to develop households to accommodate the children as if on a permanent basis,[7] and often results in shifting a child from one school to another during the school year.[8]

On the other hand, the courts have pointed out that where one parent has custody for most of the year the child will ordinarily benefit from a substantial degree of association with the other parent, and so the policy in some states is to permit a division of custody on a reasonable basis,[9] as by awarding custody to one parent for the school year and to the other parent for all or a substantial part of the summer.[10]

Caution:

Divided physical custody of children may not be indiscriminately substituted for an award of sole custody to one parent in order to appease one party.[11]

Cases:

Determination that physical custody of children with husband was in best interests of children was not based on mere ratification of post-nuptial agreement executed by parties two years prior to divorce, but was adequately supported by trial court's independent consideration of statutory "best interest" factors and specific findings with respect to wife's conduct, parties' past performance, and relative abilities for future performance of parenting responsibilities. West's Ga.Code Ann. § 19-9-3(a)(3)(A)-(Q) . Spurlin v. Spurlin, 218 Ga. 818, 716 S.E.2d 209 (2011) .

Trial court did not err in treating the parties as having equal status as parents to both adopted and biological children, for purposes of determining physical custody under joint custody plan; father's out-of-wedlock eight-year-old biological child, whom mother had adopted when he was five, had been recipient of adoptive mother's care since he was less than two years old, mother testified that she loved and treated her biological son and adopted son equally, and father so conceded in his testimony. LSA-R.S. 9:335, 9:335(A)(2)(b) ; LSA-C.C. arts. 131 , 134 . Gaydon v. Gaydon, 36 So. 3d 449 (La. Ct. App. 2d Cir. 2010) .

Apparent animosity between husband and wife since entry of initial judgment of divorce did not evidence an inability to cooperate with one another for purposes of maintaining joint custody arrangement; at hearing on wife's motion for contempt, trial court reiterated its belief that joint custody was in children's best interests and ordered family counseling as a starting point. West's A.M.C. § 93-5-24(5) . Phillips v. Phillips, 45 So. 3d 684 (Miss. Ct. App. 2010) , cert. denied (Miss. Oct. 14, 2010).

Substantial evidence supported trial court's parenting plan, entered in proceedings for dissolution of marriage, whereby wife was named child's primary parent and husband was allocated parenting time from Wednesday evening until Sunday in alternating weeks; distance between parents' residences made half-time parenting arrangement unworkable, and while wife was amenable to more flexible parenting arrangement, husband insisted on primary custody, comporting with trial court's finding that he had used intimidation tactics to keep child away from wife during period of parties' separation. MCA 40-4-212(1)(l). In re Marriage of Chamberlin, 2011 MT 253, 362 Mont. 226, 262 P.3d 1097 (2011) .

Rivero's 40-percent guideline, providing that, if each parent has physical custody of the child at least 40 percent of the time, they share joint physical custody, should not be so rigidly applied that it would preclude joint physical custody when the court has determined in the exercise of its broad discretion that such a custodial designation is in the child's best interest; Rivero's 40-percent guideline does not abrogate the court's focus on the child's best interest. Bluestein v. Bluestein, 345 P.3d 1044, 131 Nev. Adv. Op. No. 14 (Nev. 2015) .

Award of joint child custody, with primary physical custody to the mother, was in a child's best interests, even though she admitted that she occasionally smoked marihuana with her boyfriend and she had another child from a previous relationship of whom she did not have custody; the mother had been the primary caretaker for most of the child's life, she was sharing a home with her boyfriend, his mother, who was a licensed practical nurse, and his mother's friend, all of whom assisted the mother in caring for the child, and the father had twice been incarcerated, there was evidence of his regular drug use, as well as a history of selling illegal drugs and of violence toward others, and the mother claimed that the father had threatened her, which allegations were, to some extent, verified by the father. McKinney's Family Court Act § 611 et seq. Gordon v. Richards, 103 A.D.3d 929, 959 N.Y.S.2d 562 (3d Dep't 2013) .

The trial court's decision to award parents equal primary residential responsibility, in divorce proceeding, was not clearly erroneous; the court found the parents could communicate effectively, each parent had a willingness to facilitate and encourage the relationship the children had with the other parent, and that each parent understood and appreciated the needs of the children to maintain a relationship with each parent. NDCC 14-09-06.2 . Fonder v. Fonder, 2012 ND 228, 823 N.W.2d 504 (N.D. 2012) .

Shared physical custody means that the time allotted each parent must be approximately 50% in any given year. Loran v. Loran, 2015 WY 24, 343 P.3d 400 (Wyo. 2015) .

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1   Drewry v. Drewry, 3 Ark. App. 97, 622 S.W.2d 206 (1981) ; DeForest v. DeForest, 228 N.W.2d 919 (N.D. 1975) .
 The magistrate did not abuse his discretion, in an action in which the parties were awarded joint custody of their child, in awarding primary physical custody to the husband, and in providing that in the event the parties could not agree, the husband should have physical custody approximately 80% of the time; the applicable statutes did not require that joint custody involve equal physical custody, the parents resided in different states, and the magistrate allocated physical custody according to his determination of the child's best interests. King v. King, 137 Idaho 438, 50 P.3d 453 (2002) .

2   Henning v. Henning, 89 Ariz. 330, 362 P.2d 124 (1961) ; Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887 (1961) .

3   Wade v. Hirschman, 903 So. 2d 928 (Fla. 2005) .

4   Sullivan v. Sullivan, 604 So. 2d 878 (Fla. Dist. Ct. App. 1st Dist. 1992) ; In re Marriage of Mrkvicka, 496 N.W.2d 259 (Iowa Ct. App. 1992) .
 The goals of accomplishing a custody transition from the ex-wife to the ex-husband with a minimum of difficulty, while allowing the parties' minor child frequent contact with both parents due to her age, were inadequate to support the trial court's shared custody arrangement under which the child was shuttled back and forth between the parent's homes once every two weeks for 16 months. Wetzel v. Wetzel, 1999 ND 29, 589 N.W.2d 889 (N.D. 1999) .

5   Wopata v. Wopata, 498 N.W.2d 478 (Minn. Ct. App. 1993) .
 A divorce judgment ordering rotating child custody was not in the best interest of the child, where the parents showed animosity toward one another and were trying to use the child in a possessive manner. Lamelas v. Granados, 730 So. 2d 387 (Fla. Dist. Ct. App. 2d Dist. 1999) .

6   Hewitt v. Morgan, 220 Ark. 123, 246 S.W.2d 423 (1952) ; Mansfield v. Mansfield, 230 Minn. 574, 42 N.W.2d 315 (1950) .

7   In re Marriage of Hacker, 239 Ill. App. 3d 658, 179 Ill. Dec. 816, 606 N.E.2d 648 (4th Dist. 1992) .

8   Wright v. Stahl, 73 S.D. 157, 39 N.W.2d 875 (1949) ; Bohls v. Bohls, 188 S.W.2d 1003 (Tex. Civ. App. Austin 1945) .

9   Davis v. Davis, 354 S.W.2d 526 (Mo. Ct. App. 1962) ; Semmes v. Semmes, 201 Va. 117, 109 S.E.2d 545 (1959) .

10   Dworkis v. Dworkis, 111 So. 2d 70, 72 A.L.R.2d 1189 (Fla. Dist. Ct. App. 3d Dist. 1959) ; Andrews v. Geyer, 200 Va. 107, 104 S.E.2d 747 (1958) .

11   Eickbush v. Eickbush, 2007 WY 179, 171 P.3d 509 (Wyo. 2007) .

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