A question most every experienced divorce lawyer has been asked is “Can I obtain joint physical custody?” Joint physical custody literally means the children spend equal (or near equal) time with each parent. There are some standard ways this may be accomplished such as parents having the children on a 3-2-2-3 schedule or 5-2-2-5 (days). In some cases, the parents may even go week-on, week-off. This blog explores the current law on (joint) physical custody, how it may be reached and ordered at trial, and problems that may arise with joint physical custody. Ultimately, a court may order joint physical custody if it is the children’s best interests.
As noted, the place to start discussing joint physical custody is with current law. At present, the Divorce Act anticipates one parent will have sole legal custody and the other parent will have Indiana Parenting Time Guideline parenting time. However, this does prevent the parties from agreeing to joint physical custody or, the court, upon hearing the evidence, from ordering it. However, it must be in the children’s best interests. This noted, many parties agree to joint physical custody or the court orders it. This is the trend. In fact, there are pervasive arguments that joint physical custody should be the constitutional requirement because both parents have a fundamental right to raise their children and, arguably, this is required under the Equal Protection Clause of the United States Constitution. Ultimately, this challenge may be decided by the United States Supreme Court.
With the controlling law noted, this raises the question of how a party may agree to joint physical custody or obtain a divorce court decree ordering the same. In today’s world of divorce—particularly with parents who both have jobs—the division of care for the children during the marriage and, by necessity, on divorce is equal. For this reason, with deft trial counsel and some willingness on the parties to accept this fact, joint physical custody or something near to same may well be agreed to by the parties during the pendency of the divorce. If it works well, then the court is likely to continue this at trial. In addition, if there was an equal division of care during the marriage this is key evidence to present to the court at trial to make a strong argument for joint physical custody. This takes careful preparation of the evidence with trial counsel to make this showing. Ultimately, if you can show the court joint custody will work and it is in the children’s best interests, then the court may award the same.
All said, the one drawback to joint physical custody occurs with school and extracurricular activities with children of school age. It takes two committed parents to make this work. Where parents make co-parenting a “battleground”, the court is less likely to award joint custody. However, if the evidence establishes who the parent is causing the conflict with co-parenting, that may go a long way toward the other parent obtaining sole physical custody. It is in the children’s best interest that the parent who is most willing to facilitate the non-custodial parent’s time is who the court looks to award custody. This is not the parent making custody and parenting time a hostile situation.
This blog was written by attorneys at Dixon & Moseley, P.C. who handle custody cases of all types throughout the State of Indiana as well as domestic appeals. It is written for general educational purposes only and is not intended as a solicitation for legal services or legal advice. It is an advertisement.