Filing for Joint Custody

    Joint custody is an important factor that may have been overlooked during the divorce process. Circumstances in the future can change and it is best to prepare ahead of time for any eventuality. Changing the custody of children after a divorce can be relatively simple if both parents agree, though relocation can be an issue later. The court will rule based upon what is in the best interests of the child.  

Kelly Chang Rickert is a family law attorney in Los Angeles. “Ideally, every family should have a mother figure and a father figure. It is what the legislature intended. Thus, barring any unusual circumstances such as abuse, domestic violence, or a cross-country move, the default arrangement should always be joint physical and joint legal custody.”  

Robert J. Nachshin, Certified Family Law Specialist, Nachshin & Weston, LLP, Los Angeles, is co-author of "I Do, You Do...But Just Sign Here: A Quick and Easy Guide to Cohabitational, Prenuptial and Postnuptial Agreements." “Each state has its own guidelines. It is based upon the best interests of the child. California says it is the public policy of the state to ensure frequent and continuing contact with both parents after separation. The court considers which parent to be more likely to allow the child frequent contact with the other parent.”  

If contested, “there must be a substantial change in circumstances or a strong reason why the custodial arrangement should be changed from one parent to joint custody,” added attorney Henry S. Gornbein of Gornbein Smith Peskin-Shepherd PLLC of Bloomfield Hills, Michigan, a firm exclusively devoted to family law.  

There are two categories of joint custody, joint legal custody and joint physical custody. Joint legal custody gives both parents the authority to make decisions in areas such as medical, schooling, and religious instruction. “Joint legal custody is granted in excess of 95 percent of all divorces in Michigan,” Gornbein said.  

Joint physical custody involves the time the children spend living with either parent beyond the provisions of a sole custody order. “Courts are granting more and more joint physical custodial arrangements,” noted Gornbein. “Some type of joint custodial arrangement is happening, perhaps in as many as 25 percent or more of the divorce cases with children that I am involved in.”  

There are additional variations of joint physical custody. Split custody concerns the custody of different children being awarded to different parents. Rotating custody switches the physical custody of the children and where they reside at different intervals such as monthly or annually. Birdnesting is an unusual arrangement where child resides in one home with the parents moving in and out at intervals like rotating custody.  

Chang Rickert felt that joint legal custody is essential. “The non-custodial parent should always request joint legal custody. Legal custody is decision-making power. It governs decisions involving the health, education and welfare of the child. As a parent, this is an important power and should never be waived.”  

Gayle Rosenwald Smith of Philadelphia, Pa., is a family law attorney and coauthor of the book, "What Every Woman Should Know About Divorce and Custody: How to Keep the Kids, the Cash, and Your Sanity." “I think it is best to always have joint legal custody. Otherwise, one parent may unilaterally decide and the other one is cut out. If there is a medical emergency, either parent should be able to sign if the other one isn’t available.”