Shared Custody: The New Rules

Posted on Mar 22, 2019 by Katie Carter

In July of 2018, the law regarding custody was revised. The statute now specifically provides that “[t]here shall be no presumption in favor of any form of custody.”

Based on wording alone, I’m not sure that this represents any real legal change at all. I was actually already under the impression that judges considered all the different kinds of custodial arrangements more or less equally, and applied whatever they believed to be appropriate to the case at hand.

In fact, I think the wording is pretty probative. No one type of custody – primary, shared, or split – will be elevated above the others in terms of importance. The judge will consider any and all possible custodial arrangements equally. I guess, if I’m being pedantic, it doesn’t say that they have to be considered equally, necessarily, just that one kind of custody won’t be favored above the others.
But what does that actually mean in practice?

Father’s rights groups say that this means that dads will have equal opportunity in court. The longstanding assumption (though I’m not saying that I believe this to be a correct assumption) was that mothers received preferential treatment in courts where custody was concerned.

I think that model – the model favoring moms – has been in the process of being reversed for a number of years. I wouldn’t say at all that moms receive preferential treatment in custody cases. In fact, I find that moms fare worse in court, or, at least, that they bear far more scrutiny. (A mom with a boyfriend, for example, is looked at far more negatively than a dad with a girlfriend.)

I do think it’s probably reasonable to suggest that this means we will see a rise in cases where shared custody is ordered. (Shared custody, just to refresh your memory, is any custodial arrangement where the non custodial parent – the parent who has the child less – has 90 or more days in a calendar year with the child.)

Wait, what? – the statute says that no one particular kind of custodial arrangement is preferred over the others!

Yeah, I know! But I think there is a difference between what the statute says, and how the judges are interpreting it. At a (relatively) recent continuing education seminar I attended, a panel of three judges (each from different courts, and representing both juvenile and circuit courts) all indicated that they believed that the new law required them to consider shared custody first. I know, I know – that’s not actually what it says at all. It says no one kind of custody should be presumed, and that should include shared custody.
I think, though, it doesn’t. I think that shared custody is where most analysis starts these days. Maybe there isn’t a legal precedent for this, based on the exact wording of the statute, but I think it’s probably fair to say that this is most likely what it means – or what the judges are taking it to mean.

After all, child custody decisions are based on judicial analysis of the best interests of the child factors, which can lead to wide ranging decisions that are based quite heavily on the prejudices (both good and bad) of the individual judges involved. Look at the factors:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

As you can probably already tell, it’s pretty loosey goosey – and very down to judicial interpretation.

But aren’t there cases where shared custody wouldn’t be appropriate?

Oh my goodness, of course! The question is, “Are there cases where the judge would find that shared custody isn’t appropriate?” While the answer is certainly yes, it’s all going to be down to the evidence you provide, and how well you convince the judge, based on those best interests of the child factors, that something other than shared custody would be more appropriate in your case.

It’s definitely worth working with a lawyer; there are a lot of presumptions to overcome here. As sad as it is to say, it’s more and more difficult all the time, so coming up with a specific strategy and working with an attorney experienced in handling divorce and custody cases is going to be even more critical than ever before.

For more information, request a copy of our custody book , attend our custody seminar, or schedule a confidential consultation with one of our licensed and experienced custody attorneys by calling us at 757-425-5200.