What is Shared Custody?

What is Shared Custody?

There are generally two types of custody, physical custody and legal custody. Legal custody is basically who makes decisions for the children and this is usually awarded jointly to both parents. Physical custody is where the children are actually living. For example, in situations where the children live with one parent most of the time and the other parent has visitation on the weekends, the parent where the children live most of the time has sole physical custody and the other parent has visitation rights. If they were splitting time equally with the children then they would have joint physical custody. For example, with one parent having the children one week and the other parent having them the next week. When both parties are awarded joint legal custody and joint physical custody, this is sometimes called shared custody.

There really is no shared custody, its just what having joint physical and legal custody has been termed over the years since this means the parents are usually sharing time equally with the children and sharing the decision-making concerning the children. Parties will usually agree to such shared custodial arrangements only when it is in the best interest of the children, when both parents live near one another, both parents are actively involved and working together closely in the raising of the children, the parents are already dividing time equally according to some schedule such as one week with one parent and the next with the other (and have been doing so for some time and are satisfied that it is in the best interest of the child), and the parents work schedules and other such considerations permit them to both have the child with them half of the time.  

Shared custodial arrangements are more heavily scrutinized than the normal, traditional joint custodial arrangement of joint legal custody with one party having sole physical custody and the other parent having visitation rights and paying child support due to the perceived difficulty of such shared arrangements working out in the long run. This is due to the following problems with shared custody: 1) the fact that one of the parents could move too far away for it to be feasible; 2) that one parent could get too busy to have the children for one half of the month which could leave the other parent with the children most of the time and receiving no child support; 3) that one parent agrees to this arrangement in an attempt to avoid child support and not any real intent to practice the shared custody visitation schedule; or 4) the child grows up and gets sick of going back and forth constantly, every week, from house to house, and needs more stability, requesting to stay in one of the parents houses more often than the other. All of these are potential pitfalls for such an arrangement that sounds good at the time of the divorce but can become a real headache later down the road.

Because people may sometimes try to avoid child support by choosing these types of arrangements, the judges heavily scrutinize agreements for shared custody where no party pays child support to the other. If the judge considers it unfair to one party or the other that no child support is paid, or if it is felt to be in the best interest of the child for one party to pay, then a judge may not approve your agreement with a hearing, even if you are agreeing to a shared custodial arrangement. One case where a shared custody arrangement may be considered unfair could be where one of the spouses makes significantly more money than the other and would need to contribute to the child’s welfare while the child is with the other parent, paying some child support to the other parent to support the child when they have the child physically with them. Another case where it may not be in the best interest of the child is where the arrangement is too chaotic and does not provide enough stability for the child. Shared custody is unstable enough, with the child rushing back and forth between houses every week or so. However, dividing up the week with the child spending Monday and Tuesday with one parent, Wednesday and Thursday with the other, then Friday with the other, and so on, creates too much confusions and has the child staying in a different bed every other night. These type of confusing and unstable arrangements may not be in the best interest of the child and a judge may not approve such an arrangement without holding a hearing to talk with both parties about it, giving them a chance to convince him/her that it is in the best interest of the child.

Some counties are more prone to approve an agreement between the parties if the arrangement is questionable as to the fairness to the parties, but almost all counties will not approve an agreement that is not in the best interest of the children. If you are seeking a shared custody arrangement, and have already reached an agreement with your spouse, then give our divorce lawyers a call today and we will be happy to answer any questions you may have.

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