I am a big advocate for joint physical custody. If at all possible, I want children to spend a lot of time - and have good relationships - with both of their parents after a separation or divorce. But there are several problems and potential pitfalls with joint physical custody. I touch on the most important in this entry, including:
• For children, joint physical custody is the best and the worst arrangement.
• Joint physical custody is a lousy "compromise" between disputing parents.
• Joint physical custody is being used, wrongly, to lower child support payments.
• Joint physical custody is not necessarily 50/50.
• Joint physical custody requires a lot of logistical coordination.
• Joint physical custody is less stable over time than sole physical custody.
• Joint physical custody apparently works only for a minority of families.
Before addressing these points, let me be clear about terms. Different people, and different laws in different states and countries, use different words: "custody," "parenting plan," "parental rights and responsibilities" etc. I have no investment in a particular term. Parents living apart need to decide how to divide children's time between two households (physical custody), and they also need to decide how they will make big and small childrearing decisions (legal custody). So, you can call these issues "time" and "decisions," and drop the sometimes controversial term "custody" altogether. I sometimes do just that, but use "custody" here as convenient shorthand.
Another clarification: I think sharing big decisions - joint legal custody - is a no-brainer. Joint legal custody should be a presumption unless there are good reasons not to do it. But note the "big decisions" qualifier. Joint legal custody does not mean that parents get to second guess each other constantly. More on this in a coming blog.
Finally, a little preface about why I like joint physical custody philosophically. Children have two parents. Most children want to have a relationship with both of their parents after a separation, and most divorced parents want relationships with their children. Family relationships can and do continue despite the many upheavals of divorce. The old model of divorce as a family feud, where only one parent raises and "owns" the children is, well, the old model. Divorced parents can be parents even if they are no longer lovers.
I am a big advocate for joint physical custody. But...
BUT joint physical custody is the best and the worst arrangement for children. It's the best when parents can cooperate enough to make joint physical custody work for children. It's the worst when joint physical custody leaves children in the middle of a war zone. The best research supports this conclusion. In low or controlled conflict divorces, children fare better in joint than in sole physical custody. In high conflict divorces, children do worse in joint physical custody than in other arrangements. Admittedly, existing research is imperfect and very hard to do. But this "best and worst" conclusion also is commonly held by seasoned practitioners, and it makes good common sense.
BUT joint physical custody is a lousy compromise for disputing parents. Why? Because joint physical custody is the best and worst arrangement for children, and it's all but certain to be the worst when parents end up in court (because the parents, by definition, aren't working together). For judges, this means that joint physical custody may seem like a fair middle ground, but that's an illusion that keeps kids trapped in the middle. For parents who want it, this means you have to try to work out joint physical custody with your children's other parent, because wise judges already know it's a lousy compromise for children in high conflict divorces.
BUT joint physical custody is being used wrongly to lower child support payments. In my home state, Virginia, for example, child support schedules define joint physical custody as having 90 overnights per year with your child (for the purpose of calculating reduced child support payments). It's truly amazing how many parents insist that they need 90 overnights with their children. (The magic number differs from state to state, and so do many parents' demands...) If you really want 90, or more, overnights with your children, let's talk. If you really want to pay less child support, well, sorry, but raising children is expensive.
BUT joint physical custody is not necessarily 50/50. When I hear a parent insisting on exactly 50/50, I really worry. I worry that the parent is thinking about getting his or her half of the pie, not about the children. Sure, 50/50 can work. So can lots of different schedules. I consider about 25% of overnights as being joint physical custody in terms of having enough opportunity to have a rich relationship with your children. That might mean a schedule that is a week on and a week off, Wednesday through Saturday, every Thursday and Friday over night, or dividing the school year and the summers. And there are a million other options, many of which I discuss in my book, The Truth about Children and Divorce.
BUT joint physical custody requires a lot of logistical coordination. Kids forget stuff. Be prepared to drive soccer cleats or the tuba or the antibiotic to your ex's house. Oh yeah, and kids take short cuts. Be prepared to communicate regularly with your children's other parent. What about? Not about your own stuff. About your kids' stuff. Homework. Weekend plans. Discipline. Stuff like that.
BUT joint physical custody is less stable over time than sole physical custody. Several studies show this. And this isn't necessarily a problem. Kids' needs and desires change. So do parents' needs and desires. People move. New partners get involved. The changes can make a lot of sense, and changes can make things work better. So file this concern under "something for parents to consider" not under "why you don't want joint physical custody."
BUT joint physical custody apparently works only for a minority of families. At any one point in time, maybe 10% of children from divorced families are actually living in joint physical custody. (There really isn't great research here, but even the highest estimates I've seen aren't much bigger.) Why is the number small compared to the amount of talk about joint physical custody? I think it's for all the reasons I've discussed. Joint physical custody is definitely an option to consider - it's my preferred option for cooperative parents. But it's only one of many options that can work for divorced parents and for children.
Robert E. Emery, Ph.D. is a Professor of Psychology and well regarded international practice-based researcher. His research about the often overlooked, intense emotional cost of separation and divorce for children and parents is extensively cited around the world.
In July, we are honoured to be hosting Dr Emery on a tour of Queensland, to give a series of lectures, including the 15/16 July 2014 in Brisbane, entitled "The Truth About Children and Divorce." Not afraid of controversy, Dr Emery will invite you to discuss his research on topics including infant overnights, randomised trials of mediated and litigated child custody disputes, and coparenting conflict and attachment.
Dr Emery’s explanation of high emotion, especially anger, has helped many family mediators deal with emotion in the room and also to understand how the length of separation affects and predicts behavior. The connection between how adults handle their emotions at separations and the effects on their children is the key Dr Emery can use to unlock many puzzles for mediators, family lawyers and other workers in the separation field.
Blog post originally published on May 18, 2009 by Robert E. Emery, Ph.D.