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Legal Matters: Joint physical custody has its pros, cons for parents who are separating — and their children

When parents are dissolving their marriage, they may conclude that joint physical custody sounds like the best way to handle the difficult situation.

It can be, depending on the family’s situation and the ability of the parents to work together for the children’s best interests. For this discussion, let’s pretend we are not in the middle of a national pandemic, because custody arrangements may have to be modified or altered for a time because of coronavirus.

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There are two kinds of shared custody: physical and legal. Joint physical custody means the children actually have two homes that are their primary residences, even if the time they spend with each parent is not precisely equal. In joint legal custody, parents share responsibility for major decisions in the children’s lives, such as where they will go to school or what kind of religious upbringing they will have.

In Maryland, to qualify legally as a shared custody arrangement, children must spend at least 128 overnights with each parent.

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Parents may conclude that although they are no longer sharing the same home, having the children spend equal or nearly equal amounts of time in mom’s and dad’s houses will give both parents more time to spend with them. Each parent will have the opportunity to share books, sports or video games and yes, chores, with the kids.

Parents may benefit — and help the children — by demonstrating that grownups can still work together despite having serious problems in marriage. It also reduces “Daddy gave me lots of stuff and you never give me anything” manipulation attempts.

Joint physical custody tends to reduce child support payment dodging. Yes, child support payments are an obligation for the higher-earning parent even in shared custody arrangements. Noncustodial parents’ failure to pay support became so widespread decades ago that in 1990 Congress enacted legislation to require income withholding from the noncustodial parent’s paycheck for child support orders issued through a state child support program.

Joint physical custody also has disadvantages. It can be difficult for children to move back and forth, particularly if the parents have not worked out consistent schedules. Children who feel like they’re being bounced at random from Mom to Dad may begin acting out in protest, while other children, perhaps with more stable schedules, benefit from time with each parent.

For parents who have lingering issues, the cooperation necessary to share physical custody may raise stress levels. For shared custody to work well, parents need to be able to communicate with each other. “I never want to see his face again. Ever,” does not work for a custody arrangement where parents need to discuss everyday activities, scheduling and other arrangements for the children.

The Maryland Legal Assistance Network made the point in a 2007 article by social worker Roslyn Zinner, “Joint Physical Custody: Smart Solution or Problematic Plan?” that “Separation is a crisis that turns your world upside down . . . Whether joint physical custody is a smart solution or a problematic plan depends on your unique situation.”

Donna Engle is a retired Westminster attorney. Her Legal Matters column, which provides legal information but not legal advice, appears on the second and fourth Sunday each month in Life & Times. Email her at denglelaw@gmail.com.

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