How common Is required joint custody in the United States? 

A joint physical custody presumption has the effect of requiring or forcing joint custody most of the time. Despite what the supporters of requiring joint custody say, requiring joint custody is not common in the United States.

People who want our legislators to enact shared or joint physical custody presumptions say that these presumptions are “sweeping the nation.”[1] Articles about how common the joint physical custody presumption is vary in how many states they say have it, ranging from six to twenty states.  Groups seeking to enact joint physical custody presumption legislation call it a “movement.”

When you look closely at the joint custody laws that various states actually have and the joint custody bills that various states have considered, it is clear that that there no joint physical custody “movement” that is “sweeping the nation.”

First of all, the custody laws and custody terminology vary from state to state. Some states have clear definitions about what “joint custody” or “shared custody” mean. Some states have a presumption for joint custody, but only when the parents agree to it. Other states, such as New Mexico, require the judge to weigh numerous and detailed factors. Most do not require a joint custody presumption.[2] Arkansas only “favors” joint custody.[3]  Other states, such as Utah, have attempted new and varied approaches to encourage joint parenting when appropriate.[4]

Second, some states that are considered joint custody states do not have a joint physical custody presumption, but a joint legal custody presumption. For example Iowa, which is considered a joint custody presumption state, does not to have a joint physical custody presumption. The Iowa Supreme Court said that their statute “did not create a presumption in favor of joint physical care… [and that] physical care issues are not to be resolved based upon perceived fairness to the spouses, but primarily upon what is best for the child.” Florida has also been called a presumption state, but when the Florida Supreme Court reviewed a state law that said, “the court may order rotating custody if the court finds that rotating custody will be in the best interest of the child,” the Court said, “There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule…”

Third, various states that have considered bills that require a joint custody presumption have chosen instead to amend that laws to encourage shared parenting. For example, in 2012 Arizona changed its custody laws to encourage shared parenting arrangements. In 2013 Arkansas changed its custody laws to say that joint custody is favored. In 2015 South Dakota passed a law requiring judges to consider ordering joint custody.

Fourth, some other states that have recently considered requiring joint custody did notpass such laws. For example a bill in Illinois creating a presumption of at least 35% parenting time for each parent got stuck in committee and was never considered by the full legislature. Similarly, in 2013 a bill in Michigan requiring shared parenting also did not get out of their judiciary committee.

 

[1] Karmely, p. 332.

[2] Karmely, p. 332.

[3] Karmely, p. 332, fn 77. In 2013, Arkansas amended its custody laws to indicate that joint custody is “favored.”

[4] Karmely, p.332, fn 78. Utah added parent-time schedule amendments to its divorce statute.

Prepared for the Custody Awareness Collaborative by Attorney Jeff Wolf of MassLegalHelp and Community Legal Services and Counseling Center.  February, 2017.