VA Family Law Reform Coalition
States With Joint Custody Presumption Laws In The U.S.
Thirty-five states plus
the District of Columbia have statutes that explicitly authorize joint custody
as a presumption or strong preference. The following are some of the best
relevant statutes from States which provide a presumption. Click on the links to
take you to the relevant statute text. IDAHO:
Title 32, Chapter 7, 32-717B. Joint custody.2 LOUISIANA:
Civil Code, Section 3,3 MONTANA:
Title 40, Chapter 4, Part 2. Support, Custody, Visitation, and Related
Provisions3 NEW
MEXICO: Chapter 40, 40-4-9.1 Joint custody; standards for determination;
parenting plan.4 TEXAS:
153.131 Presumption that Parent to be Appointed Managing Conservator4 CALIFORNIA:
Family Code Section5 KANSAS:
Chapter 60, Article 165 MISSISSIPPI:
Title 93, Chapter 56 NEW
HAMPSHIRE: Title XLIII, Chapter 4586 GEORGIA:
Court of Appeals of Georgia, Case No. A93A0698, 7/2/93 IN the INTEREST of A.R.B.,
a child7 KENTUCKY:
Chalupa v. Chalupa, Kentucky Court of Appeals, No. 90-CA-001145-MR; (May 1,
1992).7 DELAWARE:
Title 13, Chapter 7, Subchapter I, 701. Rights and responsibilities of parents;
guardian appointment.
(a) The
father and mother are the joint natural custodians of their minor child and are
equally charged with the child's support, care, nurture, welfare and education.
Each has equal powers and duties with respect to such child, and neither has any
right, or presumption of right or fitness, superior to the right of the other
concerning such child's custody or any other matter affecting the child. If
either parent should die, or abandon his or her family, or is incapable, for any
reason, to act as guardian of such child, then, the custody of such child
devolves upon the other parent. Where the parents live apart, the Court may
award the custody of their minor child to either of them and neither shall
benefit from any presumption of being better suited for such award. DISTRICT
OF COLUMBIA:
D.C. Code 16-911. Alimony pendente lite; suit money; enforcement; custody of
children. (a)(5) and 16-914. Retention of jurisdiction as to alimony and custody
of children. (a)(2)
...
Unless the court determines that it is not in the best interest of the child,
the court may issue an order that provides for frequent and continuing contact
between each parent and the minor child or children and for the sharing of
responsibilities of child- rearing and encouraging the love, affection, and
contact between the minor child or children and the parents regardless of
marital status. There shall be a rebuttable presumption that joint custody is in
the best interest of the child or children, except ininstances where a judicial
officer has found by a preponderance of the evidence that an intrafamily offense
as defined in D.C. Code section 16-1001(5), an instance of child abuse as
defined in section 102 of the Prevention of Child Abuse and Neglect Act of 1977,
effective September 23, 1977(D.C. Law 2-22;D.C. Code 6- 2101), an instance of
child neglect as defined in section 2 of the Child Abuse and Neglect Prevention
Children's Trust Fund Act of 1993, effective October 5, 1993 (D.C. Law 10-56;
D.C. Code 6- 2131), or where parental kidnapping as defined in D.C. Code section
16-1021 through section 16-1026 has occurred.... To determine the best interest
of the child, for the purpose of making a joint or sole custody determination,
the court shall consider all relevant factors, including, but not limited to:
D.C.
Code 16-911(2)(A) In any custody proceeding under this chapter, the court may
order each parent to submit a detailed parenting plan which shall delineate each
parent's position with respect to the scheduling and allocation of rights and
responsibilities that will best serve the interest of the minor child or
children.... (D)
The court may also order either or both parents to attendparenting classes. (3)
Joint custody shall not eliminate the responsibility for child support in
accordance with the applicable child support guideline as set forth in section
16-916.1. FLORIDA:
Title VI, Chapter 61, 61.13. Custody and support of children; visitation rights;
power of court in making orders.
5(2)(b)...It
is the public policy of this state to assure that each minor child has frequent
and continuing contact with both parents after the parents separate or the
marriage of the parties is dissolved and to encourage parents to share the
rights and responsibilities of childrearing.... 2.
The court shall order that the parental responsibility for a minor child be
shared by both parents unless the court finds that shared parental
responsibility would be detrimental to the child.... 3.(3)
For purposes of shared parental responsibility and primary residence, the best
interests of the child shall include an evaluation of all factors affecting the
welfare and interests of the child, including but not limited to: (a)
The parent who is more likely to allow the child frequent and continuing contact
with the nonresidential parent. (c)
The capacity and disposition of the parents to provide the child with food,
clothing, medical care or other remedial care recognized and permitted under the
laws of this state in lieu of medical care, and other material needs. (j)
The willingness and ability of each parent to facilitate and encourage a close
and continuing parent-child relationship between the child and the other parent. (4)(c)
When a custodial parent refuses to honor a noncustodial parent's visitation
rights without proper cause, the court may: 1.
After calculating the amount of visitation improperly denied, award the
noncustodial parent a sufficient amount of extra visitation to compensate the
noncustodial parent, which visitation shall be taken as expeditiously as
possible in a manner which does not interfere with the best interests of the
child: or 2.
Award the custody or primary residence to the noncustodial parent, upon the
request of the noncustodial parent, if the award in the best interests of the
child. IDAHO:
Title 32, Chapter 7, 32-717B. Joint custody.
(1)
"Joint custody" means an order awarding custody of the minor child or
children to both parents and providing that physical custody shall be shared by
the parents in such a way as to assure the child or children of frequent and
continuing contact with both parents... If the court declines to enter an order
awarding joint custody, the court shall state in its decision the reason for
denial of an award of joint custody. (2)
"joint physical custody" means an order awarding each of the parents
significant periods of time in which a child resides with or is under the care
and supervision of each of the parents or parties. (4)
Except as provided in subsection (5), of the section, absent a preponderance of
the evidence to the contrary, there shall be a presumption that joint custody is
in the best interest of a minor child or children. (5)
There shall be a presumption that joint custody is not in the best interests of
a minor child if one (1) of the parents is found by the court to be a habitual
perpetrator of domestic violence as defined in section 39-6303, Idaho Code. Section
1 of S.L. 1982. ch. 311 read: "Policy statement. It is the policy of this
state that joint custody is a mechanism to assure children of continuing and
frequent care and contact with both parents provided joint custody is in the
best interest of said children." LOUISIANA:
Civil Code, Section 3,
Article
131. Court to determine custody. A. If there are children of the marriage whose
provisional custody is claimed by both husband and wife, the suit being yet
pending and undecided, custody shall be awarded in the following order of
preference, according to the best interest of the children: (1)
To both parents jointly. The court shall, unless waived by the court for good
cause shown, require the parents to submit a plan for implementation of the
custody order, or the parents acting individually or in concert may submit a
custody implementation plan to the court prior to issuance of a custody decree.
A plan of implementation shall allocate the time periods each parent shall enjoy
physical custody of the children and the legal authority, privileges and
responsibilities of the parents.... (2)
To either parent. In making an order for custody to either parent, the court
shall consider, among other factors, which parent is more likely to allow the
child or children frequent and continuing contact with the noncustodial parent,
and shall not prefer a parent as custodian because of that parent's sex or race.
The burden of proof that joint custody would not be in a child's best interest
shall be upon the parent requesting sole custody. D.
For purposes of this Article, "joint custody" shall mean the parents
shall, to the extent feasible, share the physical custody of children of the
marriage... Physical care and custody shall be shared by the parents in such a
way as to assure a child of frequent and continuing contact, with both parents.
An award of joint custody obligates the parties to exchange information
concerning the health, education, and welfare of the minor child; and, unless
allocated, apportioned, or decreed, the parents or parties shall confer with one
another in the exercise of decision- making rights, responsibilities, and
authority. E.
... The court shall state in its decision the reasons for modification or
termination of the joint custody order if either parent opposes the modification
or termination order. Article
132. Award of custody to parents In
the absence of agreement, or if the agreement is not in the best interest of the
child, the court shall award custody to the parents jointly; however, if custody
in one parent is shown by clear and convincing evidence to serve the best
interest of the child, the court shall award custody to that parent. SUBPART
B. JOINT CUSTODY 335
Joint custody decree and implementation order. A. (1) In a proceeding in which
joint custody is decreed, the court shall render a joint custody implementation
order except for good cause shown. (2)(a)
The implementation order shall allocate the time periods during which each
parent shall have physical custody of the child so that the child is assured of
frequent and continuing contact with both parents. (b)
To the extent it is feasible and in the best interest of the child, physical
custody of the children should be shared equally... B. (1) In a decree of joint
custody the court shall designate a domiciliary parent.... (2)
The domiciliary parent is the parent with whom the child shall primarily
reside.... (3)
The domiciliary parent shall have authority to make all decisions affecting the
child unless an implementation order provides otherwise.... C.
If a domiciliary parent is not designated in the joint custody decree and an
implementation order does not provide otherwise, joint custody confers upon the
parents the same rights and responsibilities as are conferred on them by the
provisions of Title VII of Book I of the Civil Code. MONTANA:
Title 40, Chapter 4, Part 2. Support, Custody, Visitation, and Related
Provisions
40-4-224.
Joint custody -- modification -- consultation with professionals (1)
Upon application of either parent or both parents for joint custody, the court
shall presume joint custody is in the best interest of a minor child unless the
court finds, under the factors set forth in 40-4-212, that joint custody is not
in the best interest of the minor child. If the court declines to enter an order
awarding joint custody, the court shall state in its decision the reasons for
denial of an award of joint custody. Objection to joint custody by a parent
seeking sole custody is not a sufficient basis for a finding that joint custody
is not in the best interest of a child, nor is a finding that the parents are
hostile to each other. However, a finding that one parent physically abused the
other parent or the child is a sufficient basis for finding that joint custody
is not in the best interest of the child. (2)
For the purposes of this section, "joint custody" means an order
awarding custody of the minor child to both parents and providing that the
physical custody and residency of the child shall be allotted between the
parents in such a way as to assure the child frequent and continuing contact
with both parents. The allotment of time between the parents must be as equal as
possible; however; (a)
each case shall be determined according to its own practicalities, with the best
interest of the child as the primary consideration; and (b)
when allotting time between the parents, the court shall consider the effect of
the time allotment on the stability and continuity of the child's education. NEW
MEXICO: Chapter 40, 40-4-9.1 Joint custody; standards for determination;
parenting plan.
A.
There shall be a presumption that joint custody is in the best interest of a
child in an initial custody determination.... F.
When joint custody is awarded, the court shall approve a parenting plan for the
implementation of the prospective custody arrangement prior to the award of
joint custody. The parenting plan shall include a division of a child's time and
care into periods of responsibility for each parent.... G.
Where custody is contested, the court shall refer that issue to mediation if
feasible. I.
Whenever a request for joint custody is granted or denied, the court shall state
in its decision its basis for granting or denying the request for joint custody.
A statement that joint custody is or is not in the best interest of the child is
not sufficient to meet the requirements of this subsection. J.
An award of joint custody means that: (1)
each parent shall have significant, well-defined periods of responsibility for
the child; (2)
each parent shall have, and be allowed and expected to responsibility for the
child's financial, physical, emotional and developmental needs during that
parent's periods of responsibility; (3)
the parents shall consult with each other on major decisions involving the child
before implementing those decisions; that is, neither parent shall make a
decision or take an action which results in a major change in a child's life
until the matter has been discussed with the other parent and the parents agree.
If the parents, after discussion, cannot agree and if one parent wishes to
effect a major change while the other does not wish the major change to occur,
then no change shall occur until the issue has been resolved as provided in this
subsection. TEXAS:
153.131 Presumption that Parent to be Appointed Managing Conservator
(a)
Unless the court finds that appointment of the parent or parents would not be in
the best interest of the child because the appointment would significantly
impair the child's physical health or emotional development, a parent shall be
appointed sole managing conservator or both parents shall be appointed as joint
managing conservators of the child. (b)
It is a rebuttable presumption that the appointment of the parents of a child as
joint managing conservators is in the best interest of the child. The
following are some of the best relevant statutes from states which provide a
strong preference for joint custody: ALASKA:
Title 25, Chapter 20
Sec.
25.20.100 Reasons for denial to be set out. If
a parent or the guardian ad litem requests shared custody of a child and the
court denies the request, the reasons for the denial shall be stated on the
record. CALIFORNIA:
Family Code Section
3040.
Order of preference. (a)
Custody should be granted in the following order of preference according to the
best interest of the child as provided in 3911: (1) To both parents jointly
pursuant to Chapter 4 (commencing with 3080) or to either parent. In making an
order granting custody to either parent, the court shall consider, among other
factors, which parent is more likely to allow the child frequent and continuing
contact with the noncustodial parent, subject to 3011, and shall not prefer a
parent as custodian because of that parent's sex. 3080.
Presumption of joint custody. There
is a presumption, affecting the burden of proof, that joint custody is in the
best interest of a minor child, subject to 3011, where the parents have agreed
to joint custody or so agree in open court at a hearing for the purpose of
determining the custody of the minor child. 3082.
Statement of reasons for grant or denial. When
a request for joint custody is granted or denied, the court, upon the request of
any party, shall state in its decision the reasons for granting or denying the
request. A statement that joint physical custody is, or is not, in the best
interest of the child is not sufficient to satisfy the requirements of this
section. IOWA: Title XV, Subtitle 1, Chapter 598 598.41
Custody of children 1.a.
The court, insofar as is reasonable and in the best interest of the child, shall
order the custody award, including liberal visitation rights where appropriate,
which will assure the child the opportunity for the maximum continuing physical
and emotional contact with both parents after the parents have separated or
dissolved the marriage, and which will encourage parents to share the rights and
responsibilities of raising the child unless direct physical harm or significant
emotional harm to the child, other children, or a parent is likely to result
from such contact with one parent. c.
The court shall consider the denial by one parent of the child's opportunity for
maximum continuing contact with the other parent, without just cause, a
significant factor in determining the proper custody arrangement. 2.b.
If the court does not grant joint custody under this subsection, the court shall
cite clear and convincing evidence, pursuant to the factors in subsection 3,
that joint custody is unreasonable and not in the best interest of the child to
the extent that the legal custodial relationship between the child and the
parent should be severed. KANSAS:
Chapter 60, Article 16
60-1610.
Decree; authorized orders. Neither parent shall be considered to have a vested
interest in the custody or residency of any child as against the other parent,
regardless of the age of the child, and there shall be no presumption that it is
in the best interests of any infant or young child to give custody or residency
to the mother. (4)
Types of custodial arrangements. Subject to the provisions of this article, the
court may make any order relating to custodial arrangements which is in the best
interests of the child. The order shall include but not be limited to, one of
the following, in the order of preference: (A)
Joint custody. The court may place the custody of a child with both parties on a
shared or joint-custody basis. In that event, the parties shall have equal
rights to make decisions in the best interests of the child under their custody.
When a child is placed in the joint custody of the child's parents, the court
may further determine that the residency of the child shall be divided either in
an equal manner with regard to time of residency or on the basis of a primary
residency arrangement for the child. The court, in its discretion, may require
the parents to submit a plan for implementation of a joint custody order upon
finding that both parents are suitable parents or the parents, acting
individually or in concert, may submit a custody implementation plan to the
court prior to issuance of a custody decree. If the court does not order joint
custody, it shall include in the record the specific findings of fact upon which
the order for custody other than joint custody is based. (B)
Sole custody.... (C)
Divided custody.... (two or more children) (D)
Nonparental custody.... MICHIGAN:
Chapter 722 Sec. 6a. (1) In custody disputes between parents, the parents shall
be advised of joint custody. At the request of either parent, the court shall
consider an award of joint custody, and shall on the record the reasons for
granting or denying a request.
MINNESOTA:
Chapter 518
518.17
Custody and support of children on judgment The
court must make detailed findings on each of the factors and explain how the
factors led to its conclusions and to the determination of the best interests of
he child. The
court shall use a rebuttable presumption that upon request of either or both
parties, joint legal custody is in the best interests of the child. MISSISSIPPI:
Title 93, Chapter 5
93-5-24.
Types of custody awarded by court;joint custody;access to information pertaining
to child by noncustodial parent. (1)Custody
may be awarded as follows according to the best interests of the child: (a)Physical
and legal custody to both parents jointly pursuant to subsections 2 through 7. (b)
Physical custody to both parents jointly pursuant to subsections 2 through 7 and
legal custody to either parent. (c)
Legal custody to both parents jointly pursuant to subsections 2 through 7 and
physical custody to either parent. (d)
Physical and legal custody to either parent. NEW
HAMPSHIRE:
Title XLIII, Chapter 458
458:17
Support and Custody of Children II.
Except as provided in subparagraph (c), in the making of any order relative to
such custody there shall be a presumption, affecting the burden of proof, that
joint legal custody is in the best interest of minor children: (a)
Where the parents have agreed.... If the court declines to enter an order
awarding joint legal custody, the court shall state in its decision the reasons
for denial of an award of joint legal custody. (b)
Upon the application of either parent.... The
following two states have case law which make joint custody a preference: GEORGIA:
Court of Appeals of Georgia, Case No. A93A0698, 7/2/93 IN the INTEREST of A.R.B.,
a child
In
a unanimous opinion, presiding Judge Dorothy T. Beasley stated: Although the
dispute is symbolized by a 'versus' which signifies two adverse parties at
opposite poles of a line, there is in fact a third party whose interests and
rights make of the line a triangle. That person, the child who is not an
official party to the lawsuit but whose wellbeing is in the eye of the
controversy, has a right to shared parenting when both are equally suited to
provide it. Inherent in the express public policy is a recognition of the
child's right to equal access and opportunity with both parents, the right to be
guided and nurtured by both parents, the right to have major decisions made by
the application of both parents' wisdom, judgment and experience. The child does
not forfeit these rights when the parents divorce. The
A.R.B. case was subsequently heard by the Supreme Court of Georgia, which upheld
the Court of Appeals' finding that, according to public policy of Georgia, joint
custody was in the best interests of children when both parents are fit. KENTUCKY:
Chalupa v. Chalupa, Kentucky Court of Appeals, No. 90-CA-001145-MR; (May 1,
1992).
Judge
Schroder, writing for the majority: A
divorce from a spouse is not a divorce from their children, nor should custody
decisions be used as a punishment. Joint custody can benefit the children, the
divorced parents, and society in general by having both parents involved in the
children's upbringing.... The difficult and delicate nature of deciding what is
in the best interest of the child leads this Court to interpret the child's best
interest as requiring a trial court to consider joint custody first, before the
more traumatic sole custody. In finding a preference for joint custody is in the
best interest of the child, even in a bitter divorce, the court is encouraging
the parents to cooperate with each other and to stay on their best behavior.
Joint custody can be modified if a party is acting in bad faith or is
uncooperative. The trial court at amy time can review joint custody and if a
party is being unreasonable, modify the custody to sole custody in favor of the
reasonable parent. Surely, with the stakes so high, there would be more
cooperation which leads to the child's best interest, the parents' best
interest, fewer court appearances and judicial economy. Starting out with sole
custody would deprive one parent of the vital input.
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