Custody (Part 2)

Joint Physical Custody:

As already mentioned, this is a custody arrangement which allows a child to reside with each parent for a substantial amount of time during the course of a calendar year. But this arrangement does not denote a 50/50 allocation of time the child spends with each parent. "Joint custody" may, in fact, refer to a schedule in which one parent receives time that is anywhere along the spectrum of 1 % to 99%. The word "joint" simply means either a schedule agreed to by the parties or a plan the court or legislature has chosen to characterize as "joint." Courts are not often inclined to establish an arrangement that involves moving, with frequent changes for a child. This is so because a large body of professional literature argues that children need a primary residence for optimal emotional health. Rather than debate the merit of this position, suffice it to say that if you go to trial seeking a joint physical custody arrangement, expect to battle with various experts critical of your position. That is not to say, however, that you cannot win such a battle. I have fought and won them despite opposing expert testimony.

In the early stages of a divorce, when clients and I strategize regarding custody, I always discuss the potential for a "50/50" order. Many dads find themselves without a realistic shot at sole custody, and are therefore torn between the two remaining possibilities of 50/50 or the more traditional non-custodial schedule. (There are of course, an infinite number of gradations in between, but for analytical purposes it is simpler to view these as discrete categories). Generally, 50/50 custody is an exception rather than a rule, and there must be exceptional circumstances militating in its favor. These factors might help you decide whether to seek a 50/50 custody arrangement.

Who is the judge: I would first want to know whether we have a judge who will fairly consider this option. If not, the best of arguments and evidence will fail.

Record: is there a history of sharing of duties between two parents, or a very close bond between a dad and a child, which can be maintained only by a co-parenting arrangement.

Logistics: the proximity of the parties' homes and employment as well as the compatibility of schedules.

Good relationship: the relationship between the parties must be good. In fact, it is particularly helpful if, during the separation, the parties actually implement such a plan and it works - the kids appear to benefit from the arrangement.

Children: Where there are older children (adolescent or teen), it is also important that the children understand the situation and cooperate with their parents.

This online custody guide is adapted with permission from "Civil War: A Dad's Guide to Custody" (266 pages, softcover) - available in our online store.