By Henry S. Gornbein

I was recently e-mailed a question about different types of custody. Custody is a very important issue. The term joint-custody is often misunderstood. I am going to discuss this in terms of Michigan Law, but I believe many of the concepts are applicable anywhere. In Michigan, we have a presumption in divorces that where there are minor children, there is to be joint legal custody. Joint legal custody refers to joint decision making. It means that both parents are to share in decision making authority over the important matters effecting the welfare of the child or children. These would include education, medical care, religious upbringing, elective medical procedures and issues involving psychological counseling, certain extracurricular activities and summer camps. The important concept behind joint-legal custody is to make it clear that even in a divorce situation a child has two parents and there is to be communication encouraged between both parents with regard to issues effecting the children. It must be borne in mind in Michigan that in most cases, one parent has physical custody and the parent with physical custody is responsible for the day-to-day decision making as it effects the health, welfare, and best interests of the child or children.

Joint physical custody is an arrangement for both parents to share a great deal of time with the children. Typical examples that I have seen in my practice are situations where the children spend close to one-half the time with each parent. This is a true joint-physical custody arrangement. To work, there must be very excellent communication, and it is rare that parents are able to do this. I often ask my clients "If you are able to communicate so well with regard to the children, why can't you communicate on all issues and save the marriage?" A typical joint physical custody arrangement might be one where the parents live in the same school district so that the children can go from house to house on a fairly regular basis, perhaps as often as every other week or when they are not physically living there. Other joint physical custody arrangements may include most school vacation times with the other parent. Here, the parent who has the children during the school year has primary physical custody, but there is also physical custody with the other parent.

I have also worked out physical custody arrangements in cases where we rotated custody every four months. The children would be with one parent during the months of July, August, September and October, and the other parent in November, December, January and February and then March, April May and June with the first parent. The result is that the seasons differ from year to year and there is an equality of seasons over the years. In addition to this joint-physical custodial arrangement, there is a specific parenting time schedule so that when the children are with one parent, they spend alternate weekends and one evening or more per week with the other parent. They also rotate or share all major holidays. Last but not least, there is another theory that is used by some judges. This is called the birds nest theory. Under this concept, the children live in the marital home and the parents take turns living in the home. This theory is very expensive. As far as I am concerned, in the few cases where I have seen it happen, it is "for the birds" and it does not work. I hope that these ideas defining joint-legal and joint physical custody are of some help. If there are other questions, either e-mail them to Divorce Online, or else contact your local attorney as laws and ideas vary from state to state.

Copyright, 1995 by: Henry S. Gornbein

Posted on Saturday, February 24, 2007 at 01:45PM by Registered CommenterSite Administrator in , | Comments Off

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