What’s the difference between legal and physical custody?

Physical custody refers to the parent’s right to have the children actually live in their home, and in joint physical custody the children have two primary residences, even if time in each is not equal. Joint legal custody refers to the shared responsibility, regardless of where the children are living, for making such major decisions as where they will go to school and what their religious upbringing will be. Frequently divorcing couples share one type of joint custody without the other.

What are the advantages of joint custody?

Living in both households allows children to maintain a strong relationship with both parents. Fathers who share physical custody tend to spend much more time with their children, and mothers (and fathers) need periods of relief from the demands of single parenting. When both parents are available, children enjoy the unique gifts of guidance, discipline, and demonstrated love of each parent. Additionally, your children will learn that men can nurture and women can take charge.
Children benefit when parental relations are cooperative and there are no ongoing custody battles. Even if you feel very angry with him over the breakup, you may be able to cooperate in parenting your children. If you can tolerate sharing physical custody, chances you both will be more satisfied and less likely to return to court. Your children will have less opportunity to manipulate, and will learn that even painful, serious conflicts can be resolved in a civil way.

3. Children in shared physical custody have “normal time” with both parents. When mothers have sole custody, “Sunday Dads” often shower kids with costly activities and gifts aimed at making up for lost time. This is turn generates resentment from mothers who are left with the less glamorous jobs of setting limits and disciplining. When your children live part-time with both of you, these inequities tend to disappear.

4. Joint physical custody may lessen or eliminate the traumatic sense of loss and rejection children often feel when a parent moves out. If your children are allowed continuous access to both parents, they are more likely to adjust to the divorce and be able to focus on, “ the totally absorbing business of growing up, on schedule” (from Mom’s House, Dad’s House by Isolina Ricci).

5. Children may benefit materially. 75% of fathers with joint custody pay child support regularly, compared to 46% of fathers whose ex-wives have sole custody.

What are the disadvantages of shared custody?

1. Children’s daily lives can resemble Ping-Pong balls. This is particularly true when there are no consistent schedules planned ahead of time, and children move back and forth at the whim of parental needs. As a very general rule, young children need much more frequent access to parents, while middle school children and older may enjoy and tolerate longer stays with each parent. When you have several children with different age-related needs, it may be difficult to come up with a plan that works to each one’s benefit.

The “bounce” syndrome is compounded when each child’s developmental, educational, and social needs are not considered. Children with learning disabilities, for example, will have more trouble organizing their schoolwork when they shuttle between 2 homes. If, for example, you are both keeping track of school assignments, gaps easily occur. “I thought you were keeping up with his math” is a familiar refrain.

2. The psychological impact may be a sense of lack of control and chaos in a child’s life. Predictability and stability help children develop confidence and the ability to take reasonable risks. If your children experience life as unpredictable or out of their control, they are more likely to misbehave, develop somatic symptoms, or become depressed.

3. Expenses are greater in maintaining two full residences. You’ll need double of everything: clothing, furniture, and other necessities.

4. When parents have unresolved marital issues, the demands of sharing physical custody can make things worse. You will need more constant discussion and negotiation around everyday activities, and this contact may compound the hurt or anger you already feel. In contrast, a sole custody arrangement with visitation requires minimal ex-spouse contact, and allows you both greater freedoms to move forward in your lives.

What factors should I consider in deciding whether joint physical custody could work?

· Trust level around parenting issues during your marriage.

· Strength of both your motivations to make it work

· Children’s ages, needs, and personalities.

· Financial situation.

· Level of emotional adjustment of both parents prior to the divorce.

Shared custody works best when:

· Parents can maintain a civil, business-like relationship.

· Arrangements are planned around the children’s needs and developmental requirements.

· Schedules are predictable and stable but flexible enough to change when circumstances dictate it.

· Parents live in physical proximity.

· Parents are careful to support and not undermine each other, regardless of their feelings about each other.

· Financial resources are available to maintain two full residences.

*Children whose parents are in less conflict will fare best in either arrangement.

How can we develop a fair agreement?

Divorce mediation offers the best structure for discussing and negotiating both large and small details of your parenting agreement. Our adversarial system, in contrast, sets you up to do battle with each other, and allows lawyers and judges to negotiate decisions for you. This can be expensive both financially and emotionally. Once a downward cycle of demands and accusations gets started, it’s very difficult to reach agreement, and even harder to generate long-term good will.

Mediators are specially trained professionals, usually with legal or mental health background, who help couples work through animosity and pain to resolve conflicts about children and finances. In mediation, you and your spouse will make the important decisions about what parenting agreement is best for your family.

Joint physical custody - yes or no?

Separation is a crisis that turns your world upside down, and some days you wish you could just wake up to a different reality. There are so many decisions to make, and your parenting/custody agreement is probably the most important one. You know you’ll have to live with it for the next 20 years. Whether joint physical custody is a smart solution or a problematic plan depends on your unique situation.