Shared Custody Law & Legal Definition


When both parents share custody of a child after a divorce it is called joint custody. Joint custody may be either legal or physical custody. Physical custody,  designates where the child will actually live, whereas legal custody gives the custodial person(s) the right to make decisions for the child's welfare. Child custody can be decided by a local court in a divorce or if a child, relative, close friend or state agency questions whether one or both parents is unfit, absent, dead, in prison or dangerous to the child's well-being. In such cases custody can be awarded to a grandparent or other relative, a foster parent or an orphanage or other organization or institution.

The basic consideration on custody matters is supposed to be the best interests of the child or children. In most cases the non-custodial parent is given visitation rights, which may include weekends, parts of vacations and other occasions. The custody order may be modifed if circumstances warrant.

Laws on shared custody vary by state. most states have adopted laws to encourage the involvement of both parents.  These laws use differing language in defining the time alloted to each parent, such as "frequent and continuing contact" or "equal time". The following are examples of various states' statutes governing shared custody:

  • "It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody."
  • "Unless it is shown to be detrimental to the welfare of the child, the child shall have, to the greatest degree practical, equal access to both parents during the time that the court considers an award of custody...
  • "The court shall determine custody, either originally or on petition for modification, in accordance with the best interests of the child. The court shall consider all relevant factors, including:
  1. The wishes of the child's parent or parents as to custody.
  2. The wishes of the child as to the custodian.
  3. The interaction and interrelationship of the child with the child's parent or parents, the child's siblings and any other person who may significantly affect the child's best interest.
  4. The child's adjustment to home, school and community.
  5. The mental and physical health of all individuals involved.
  6. Which parent is more likely to allow the child frequent and meaningful continuing contact with the other parent.
  7. Whether one parent, both parents or neither parent has provided primary care of the child.
  8. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding custody.
  9. Whether a parent has complied with chapter 3, article 5 of this title.
  10. Whether either parent was convicted of an act of false reporting of child abuse or neglect under section 13-2907.02."

"(1) The court may award either joint physical custody or joint legal custody or bothas between the parents or parties as the court determines is for the bestinterests of the minor child or children. 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. Except as provided in subsection (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children. 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..."