Everyone agrees that children benefit from contact with both parents, as long as the parents are fit to care for them. There is a growing interest in having parents share custody after a divorce or separation. Custody laws are governed by individual states, with some states favouring shared custody more than others.
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The laws of England and the United States have tended to award child custody to only one parent. Up to the end of the 19th century that parent was most often the father. In the 20th century the custodial parent most awarded custody became the mother. And by the end of the 20th century, courts began to allow shared or joint custody more often.
Child custody had two basic forms: legal and physical custody. Legal custody refers to the power to make legal decisions such as the child's choice of doctor, school, and other activities. Physical custody generally refers to the right to have the children physically reside with a parent. Both of these forms of custody can be shared, though courts approve shared legal custody more often than they approve shared physical custody.
The legal meaning of shared custody is synonymous with joint custody. In other words, shared custody means that both parents share legal custody, physical custody, or both. Sometimes the term "shared custody" will be used to refer only to physical custody, usually by groups who are advocating that courts allow more shared physical custody. Shared legal custody is already common, but shared physical custody is still rare in many jurisdictions.
While many courts on their own initiative are unlikely to order shared physical custody of children, parents can reach an agreement and ask the court to approve it. Since the court must always consider the best interests of the child above any rights of the parents, it will only approve such an agreement if it will be beneficial for the child. For example, a court might find that switching homes a few days each week would be too disruptive, but would agree that the children could spend alternate months with each parent. So if you want shared physical custody, try to work out an agreement first that the court would approve.
Courts will consider several factors before awarding custody or approving a parenting plan, such as how old the children are, which parent has been the caregiver, and what hours the parents work. Older children may be allowed to give their preferences. The court may also consider how much time would be spent transporting the children between homes.
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