Recently I have had a lot of conversations with other practitioners regarding where courts are going on the subject of Shared Physical Custody.  Interestingly enough, more and more judges seem to be starting cases with the question: "Why shouldn’t I be entering an order for shared and equal physical custody".  In more and more families, both parents are working. And with children being so "scheduled", one parent just can’t do everything.

Factors which I have found are looked to by the Courts in deciding this issue are:

1.  Whether the parents live in close proximity to one another.

2.  The involvement each parent had with the children prior to separation and since separation.

3.  Whether the parents are able to communicate.

4.  Whether the parents encourage and support the relationship of the other parent with the Children.

5.  Each party’s work schedule.

Obviously, there are many others, as custody issues must be decided on the facts of each case.

Interestingly, these factors are not always applied as they used to be.  For example:

  • In a recent case, the court found that where Mother did not support Father’s relationship with the children, it was more important for Father to have equal time so that his relationship could be protected.
  • Where transfers are tough on the children, it may be better to have one parent drop off at school and the other pick up from school to effectuate the transfer, so that there is not the opportunity for conflict between the parents in front of the children.

Also, parents who believe they should have primary physical custody are being told by the courts that they need to recognize that children are flexible, that they want to spend time with both of their parents, and that substantial time with each parent often is in their best interests.

This is not to say that shared custody is appropriate in every case.  Obviously, the "best interests of the children" continues to be the standard to be applied.  And each case has its own set of facts.