How do courts determine when to award joint custody?

Answer 1

There is a great degree of variation among states. Joint legal custody is routine in some states, but joint physical custody is not, and the factors considered by the court for joint physical custody vary significantly among states. Anyone considering joint custody should contact a local attorney regarding this question. About 90% of divorce cases are settled out of court, though, and most joint custody is established this way. Judges will rarely change an arrangement that has been established by the parents.

The legal status of joint custody may eventually change. Supreme Court decisions have found parental rights to be guaranteed by the Constitution. Because a fundamental right cannot be denied without a compelling state interest that cannot be achieved by any less restrictive means, some legal scholars believe that, in the absence of abuse or neglect, parents have a right to both legal and physical joint custody (Canackos, 1981; Robinson, 1985). This theory has not been tested in court.

[This answer was excerpted from "Questions and s About Joint Custody" by Rick Kuhn.]

References:

Canacakos, Ellen. "Joint Custody as a Fundamental Right", Arizona Law Review, Vol. 23, 1981.

Robinson, Holly. "Joint Custody: Constitutional Imperatives", University of Cincinnati Law Review, 1985.

Answer 2

When the parents have a co-operative and congenial relationship, the court is most likely to approve a joint custody arrangement. In that case, the parents are able to set aside their own egos and work together in the best interest of their child. They are generally the authors of their custody agreement. Judges are reluctant to award joint legal custody to parents who do not get along well with each other since every decision may be met with arguments that will only increase stress for the children and the parent with physical custody. It is extremely toxic when one parent uses joint custody to continue to control the other parent.

Co-operative parenting is likely to flow naturally into a joint custody arrangement. Since you need to 'make a case' for joint custody that may indicate that you do or do not have a congenial relationship with the other parent and it is difficult to give advice in that case.