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Report No. 257

Chapter III

The Concept of Joint Custody

A. International Approaches to Joint Custody

3.1.1 Joint custody systems vary widely across the globe. A comparative review of different countries reveals a vast diversity of approaches. The term "joint custody" can refer to several different things: joint legal custody, joint physical custody, or a combination of both. The definition in the State of Virginia recognizes this:

"Joint custody" means (i) joint legal custody where both parents retain joint responsibility for the care and control of the child and joint authority to make decisions concerning the child even though the child's primary residence may be with only one parent, (ii) joint physical custody where both parents share physical and custodial care of the child, or (iii) any combination of joint legal and joint physical custody which the court deems to be in the best interest of the child.58

58 VA Code Ann. § 20-124.1.

3.1.2 Similarly, the State of Georgia defines joint custody as "joint legal custody, joint physical custody, or both joint legal custody and joint physical custody."59

59 Ga. Code Ann., § 19-9-6(4).

3.1.3 There is a similar distinction between sole legal custody and sole physical custody, although some States (including Virginia) combine them together.60 The State of California has the following definitions:

"Sole legal custody" means that one parent shall have the right and the responsibility to make the decisions relating to the health, education, and welfare of a child.61

"Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.62

60 VA Code Ann. § 20-124.1 ("'Sole custody' means that one person retains responsibility for the care and control of a child and has primary authority to make decisions concerning the child.").

61 West's Ann. Cal. Fam. Code § 3006.

62 West's Ann. Cal. Fam. Code § 3007.

3.1.4 One of the unifying themes across the different shared parenting systems is the importance given to the best interest of the child.63 However, jurisdictions differ on how they apply this standard. Some have a presumption that shared parenting is in the best interest of the child-Australia's Family Law Act, for example, states that, "[W]hen making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child."64

Other jurisdictions allow for shared parenting but do not contain this presumption. Minnesota law explicitly states that "[T]here is no presumption for or against joint physical custody," with certain exceptions.65 Canada, South Africa, the U.K., and Kenya also have no presumption for or against joint custody.66

63 See, e.g., Canada Divorce Act, 1985, § 16(8) ("In making an order under this section, the court shall take into consideration only the best interests of the child...."); Australia Family Law Act, 1975, § 65AA (as amended 2006) ("[I]n deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."); South Africa Children's Act, No. 38 of 2005, § 9; U.K. Children's Act, 1989, § 1(1).

64 Australia, Family Law Act, 1975 § 61DA (as amended); see also Idaho Code Ann. § 32-717B(4) ("[T[here shall be a presumption that joint custody is in the best interests of a minor child or children.").

65 M.S.A. § 518.17(2)(a).

66 Canada Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), § 16(4), (8); South Africa Children's Act, No. 38 of 2005, §§ 22, 23, 30; U.K. Children's Act, 1989, §§ 8, 11(4); Kenya Children's Act §§ 82(1), 83(1).

3.1.5 Many countries that allow (or even have a statutory preference for) shared parenting do not allow it in some cases. Where there is domestic violence or any sort of abuse, most jurisdictions have a presumption against shared parenting.67 Shared parenting is also disfavoured where parents have a particularly contentious relationship. As a US Court of Appeals noted in Braiman v Braiman:

Joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion. As a court-ordered arrangement imposed upon already embattled and embittered parents, accusing one another of serious vices and wrongs, it can only enhance familial chaos. Braiman v. Braiman, 44 N.Y.2d 584 (1978) (citations omitted); see also Padgen and Padgen (1991) FLC 92-231 (Austr.) (setting preconditions for shared custody, including compatible parenting, mutual trust, co-operation, and good communication).

67 Id. St. 32-717B(5) ("There shall be a presumption that joint custody is not in the best interests of a minor child if one (1) of the parents is found by the court to be a habitual perpetrator of domestic violence") (Idaho); Australia Family Law Act, 197 (as amended), § 61DA(2) (presumption that equal parental responsibility is in the best interest of the child does not apply if there are reasonable ground to believe that a parent has engaged in abuse or family violence).

3.1.6 Practical considerations are also relevant. Some jurisdictions consider geographical proximity when deciding an award of shared parenting. Padgen and Padgen (1991) FLC 92-231 (Austr.). Family courts in South Africa, for example, do not frequently award joint physical custody of children on the basis that such an arrangement would be disruptive for the child, particularly in cases where the parents live far apart.70 Also, the de facto living situation of child can be relevant-in the United Kingdom, shared residence orders "may be regarded as appropriate where it provides legal confirmation of the factual reality of a child's life." In re A, [2008] EWCA Civ 867, ¶ 66.

70 A Barrat and S Burman,"Deciding the Best Interests of the Child" 118 South African Law Journal (2001).

3.1.7 A number of jurisdictions recognize the distinction between legal custody (the right to make major decisions for a child, such as decisions involving education, medical and dental care, religion, and travel arrangements)72 and physical custody (the right to provide routine daily care and control of the child).73 This distinction parallels the distinction between guardianship and custody in India. Some jurisdictions use other terms for this distinction.

In Australia, for example, "parental responsibility"-defined as "the duties, powers, responsibilities and authority which, by law, parents have in relation to children"-is distinct from the amount of time the child spends with each of the parents.74 Similarly in France, "parental authority," which refers to "a set of rights and duties whose finality is the welfare of the child,"75 is distinct from a parent's right of access and lodging.76 Kenya distinguishes between "legal custody" and "actual custody."77

72 See V.A.M.S. 452.375(1)(2) ("'Joint legal custody' means that the parents share the decision-making rights, responsibilities, and authority relating to the health, education and welfare of the child, and, unless allocated, apportioned, or decreed, the parents shall confer with one another in the exercise of decision-making rights, responsibilities, and authority"); 15 V.S.A. § 664(1)(A) ("'Legal responsibility' means the rights and responsibilities to determine and control various matters affecting a child's welfare and upbringing, other than routine daily care and control of the child. These matters include but are not limited to education, medical and dental care, religion and travel arrangements. Legal responsibility may be held solely or may be divided or shared.").

73 See VA Code Ann. § 20-124.1 ("'Joint custody' means (ii) joint physical custody where both parents share physical and custodial care of the child"); 15 V.S.A. § 664(1)(B) ("'Physical responsibility' means the rights and responsibilities to provide routine daily care and control of the child subject to the right of the other parent to have contact with the child. Physical responsibility may be held solely or may be divided or shared."); Ga. Code Ann., § 19-9-6(3) ("'Joint physical custody' means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.").

74 Compare Austrl. Family Law Act 1975 § 61B ("In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."), with Austrl. Family Law Act 1975 § 61DA (the presumption that parents have equal responsibility "does not provide for a presumption about the amount of time the child spends with each of the parents").

75 France Civil Code Article 371-1.

76 France Civil Code Article 373-2-1 ("Where the welfare of the child so requires, the judge may commit exercise of parental authority to one of the parents. The exercise of the right of access and lodging may be refused to the other parent only for serious reasons.").

77 Kenya Children's Act, § 81(c)-(d).



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