JOINT CUSTODY: HOW IT IS DEFINED IN THE LAW AND WHAT IT MEANS IN REALITY

By: Jacqueline Harounian, Esq.

Chances are if you ask five different people what “joint custody” means, you'll get five diverse answers. “What is joint custody?” is one of the most frequently asked questions that I hear as a family lawyer. Joint custody or “shared parenting”, as it is also called, is a legal concept that may be easy to define, but in practice, and in the courtroom, it is interpreted in various ways. Complicating matters is the fact that joint custody is defined differently in most states.

In most states, custody of a child is defined in terms of physical custody (which parent the child lives with) and legal custody (also known as joint decision making , which dictates which parent has the authority to make decisions about the child). Custody can be awarded to one parent in the case of sole custody, or it can be awarded to both parents in the case of joint / shared custody.

Parents with joint legal custody typically agree to consult with each other and reach agreement on important issues affecting the child, including medical, legal, academic, religious, and safety issues. Joint legal custody ensures that both parents have an active role in guiding the child and making decisions that affect the child's welfare, not just one parent making unilateral decisions. Parents with joint physical and legal custody must cooperate in parenting decisions on a daily basis. They must communicate with each other with regard to all of the details necessary to facilitate the children moving from one household to another.

Generally speaking, most judges and parents would agree that it is better for children to be raised by both parents, with a shared parenting schedule that affords frequent and continuing contact with both parents. In many states, the divorce court can make an order of joint custody, even when one parent objects to the arrangement. In New York, however, joint custody is only available if both parents agree, i.e. reach an amicable settlement on the issue of custody. The rationale behind this is that a court's decision of joint custody cannot transform two contentious litigants into caretakers who will equally share the responsibilities of parenting and make mutually consensual decisions affecting their child. Furthermore, New York judges generally do not favor split custody or joint physical custody. New York law has recognized that joint custody should be permitted on a case by case basis where it serve the best interests of the child or children involved.