CHILD CUSTODY FACTS

Nearly all states distinguish between legal and physical custody. Legal custody refers to the parental right to make major decisions regarding the child's health, education, and welfare. Physical custody refers to the living arrangements of the child on a day to day basis. There are two basic custody arrangements in the United States, sole custody, the most common, and joint custody. Sole custody assigns to one parent all legal rights, duties, and powers as a parent, including the right to make all decisions. In sole custody, the child resides with the custodial parent; the noncustodial parent is given the right to visit the child. The limited rights and privileges of the noncustodial parent have been expanded in most states over the past decade to provide equal legal access to child-related information of an educational and medical nature, and to make medical decisions in emergencies when the child is in the noncustodial parent's care.

In joint custody arrangements, each parent retains certain rights and responsibilities with respect to the post-divorce parenting of the children. Considerable variation exists between states in the definition of joint custody, and under what circumstances it will be permitted and denied. With joint legal custody, both parents retain power to make decisions about their children, although in many states, the particular decisions to be jointly made must be specified in order to preserve the authority. Joint physical custody statutes are intended to indicate that the child lives with both parents on some shared basis, each parent assuming day to day parental responsibilities.

Joint physical custody statutes do not define how much time the child resides with each parent, and are not interpreted as dictating a 50/50 residential time sharing. Thus, parents may elect joint physical custody, but the child may spend anywhere from 25% to 50% of his time with one of his parents, and the remainder with the other. The intent, for many fathers seeking joint physical custody language, is to avoid the label of "visitor" in the child's life, and to have the child "live" in that parent's home more than the usual limited visitation time.

The legal trend over the past decade has been to favor shared parental legal authority over shared residential custody. While in most states, parents can agree to both or just one of these legal arrangements, the most common arrangement remains that of joint legal custody and sole or primary physical custody to one of the parents, most often the mother. In very unusual circumstances, with a history of extreme conflict over educational, medical, or religious values, parents may have joint physical custody, but one parent is assigned sole legal custody.

Other legal custody arrangements that can be ordered at divorce include split custody, in which one or more children live with one parent while the remaining live with the other parent, and divided custody, also referred to as alternating custody. This form of custody allows each parent to have the child for alternating blocks of time, often every year or two years, with reciprocal visiting rights. Such legal arrangements are much less common. Judges are reluctant to order split custody, in particular, because of a firm belief that siblings should not be separated, but research indicates that such arrangements evolve informally between parents in the years after divorce, particularly with older children.

Despite changes in the law and social custom, custody arrangements remained remarkably stable over the past three decades. National estimates in the 1970's and 80's indicated that women had sole custody of the children approximately 85% of the time, and men retained sole custody 10% of the time, with the remaining 5% spread over a variety of custody arrangements, including grandparent, split or joint custody. More recent data sets indicate that father custody figures may be closer to 15%.

All these data are based on census and survey data, rather than court records, and reflect actual physical living arrangements.

In states permitting or encouraging joint legal and physical custody arrangements, it is difficult to determine what percentage of parents have joint legal or physical custody, as this data must be obtained from individual divorce decrees.

There is evidence that the incidence of joint legal custody rises dramatically when statutes permit this arrangement. By the late 1980's, joint legal custody had become normative in California, appearing in 75% to 90% of decrees. The incidence of joint physical custody in divorce decrees also increases after enabling legislation is passed, but at a lesser rate. In three California studies that obtained data regarding physical custody from final decrees, joint physical custody language appeared in 20%, 37%, and 60% of the cases, respectively. Variations can be attributed to the educational level of the sample, the use of mediation, and local judicial practice or preference. In other states utilizing different statutory criteria for joint physical custody, or where the social and judicial climate is less accepting of shared parenting, the incidence of formal orders with joint physical custody language may be quite low. Regardless of setting, the inclusion of such language in the court order is independent of actual residential arrangements.

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