Joint Custody v. Sole Custody

I get asked often about joint custody and usually find that people confuse CUSTODY with VISITATION, which are two totally separate matters. Custody generally refers to who has the primary decision making authority with regards to the main decisions in the child’s life, such as where the child goes attends school, major medical care and general control over the raising of the child. A person may have Joint Custody and share in the decision making authority in major matters (according to the required Joint Custody Plan), but may have standard every other weekend visitation. Conversely, a party may have sole legal custody, but the parties may have an enhanced visitation schedule, which could be 50/50 time.

In my opinion Joint Custody plans can work, but only in very special circumstances. The parties must be able to communicate very well with each other, both be able to make good decisions not only about the children, but in their personal lives, and want to put the children’s needs first. Unfortunately, these kinds of parents are relatively rare. Unless it is a special case where the parents are sure to do their best to make such a plan work, I usually recommend one party or the other seek legal custody and allow extended visitation if appropriate.

It is also important to note that it is much easier to terminate a Joint Custody plan and custody to be placed on the other parent than it is to change custody from one parent to the other. The standard to terminate Joint Custody is that the “joint custody plan is not working, and is no longer serving the child’s best interest.” Daniel v. Daniel, 2001 OK 117. If the Court makes this initial finding, then the custody case is now back to square one and “the trial court must proceed as if it is making an initial custody determination and award custody in accordance with the best interest of the child, as if no such joint custody decree had been made.” Id.

If, however, a party seeks to change custody from one parent to the other, the moving party must prove “(a) there has been a permanent, substantial and material change of conditions which directly affect the best interests of the minor child, and (b) that, as a result of such change in conditions, the minor child would be substantially better off, with respect to its temporal and its mental and moral welfare, if the requested change in custody be ordered.” Gibbons v. Gibbons, 1968 OK 77

This is a much higher standard and more difficult to prove. It is always good advice to carefully consider your options when it comes to an initial child custody determination, because how you start inevitably affects what happens going forward.

I also get asked about how Joint vs. Sole Custody affects child support. While who pays child support is dependent on who has legal custody, child support is usually still ordered in Joint Custody cases. The amount of child support is much more dependent on how many overnights a party has and the income of the parties. Child support can also be tricky, so be sure you know what exactly you are agreeing to prior to the entering of a custody/visitation/child support order.

Remember, this information does not create an attorney/client relationship and is intended as general advice only. Contact an experienced family lawyer for more detailed analysis of your case.