AUGUST 1989
BE IT RESOLVED, that the American Bar Association approves, and urges state legislatures to adopt, the Model Joint Custody Statute dated August, 1989 which makes joint custody an explicit option for families which have experienced separation or divorce.
(1) Policy
It is the policy of this state to assure minor children of frequent and continuing contact with parents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage. Joint custody is inappropriate in cases in which spouse abuse, child abuse, or parental kidnapping is likely to occur.
(2) Definitions
(a) For the purposes of this section, "joint custody" means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody. In making an order for joint custody, the court may order joint legal custody without ordering joint physical custody.
(b) "Joint legal custody" means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
(c) "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.
(3) Orders of Joint Custody; Factors Considered
(a) The court, upon the request of either or both parents, may award joint custody if joint custody is determined to be in the best interest of the child.
(b) If the court orders joint custody over the objection of a parent, the court shall make specific written findings on why joint custody is in the best interest of the child.
(c) In determining whether joint custody is in the best interest of the child, the court shall consider the factors enumerated in section [reference would be made to the section, if any, in the state's statute used in determining the best interest of a child in a custody dispute and the following factors]:
(1) the agreement or lack of agreement of the parents on joint custody;
(2) the past and present abilities of the parents to cooperate and to make decisions jointly;
(3) the ability of the parents to encourage the sharing of love, affection, and contact between the child and the other parent;
(4) any history of or potential for child abuse, spouse abuse, or parental kidnapping;
(5) the geographic proximity of the parents to each other as this relates to the practical considerations of joint physical custody; and
(6) the recommendation of the representative of the child, if the child has a representative.
(4) Joint Custody Plans
In order to implement joint custody, the court shall require the parents to submit a plan on issues on which the parents are able to reach agreement, unless both parents agree to waive submission of a plan and the court approves the waiver. In the event the parents are not able to reach agreement on elements of a plan, the court shall set the plan. The plan shall include provisions covering matters relevant to the care and custody of the child, including:
(a) the child's care and education;
(b) the child's medical and dental care;
(c) holidays and vacations;
(d) child support pursuant to Section 8 of this Act and Section [reference would be made to the state's child support statute or guidelines]; and
(e) any other factors the court deems necessary that affect the physical or emotional health and well-being of the child.
(5) Use of Professional Services
When considering an award of joint custody, the court may utilize the advice of professionals and the services of investigative agencies as provided in section [reference would be made to the section of the state's statute, if any, which authorizes mental health evaluations, social service investigations, and referrals to mediation services].
(6) Access to Information
Unless otherwise provided by court order or law, all records and information pertaining to the child, including medical, dental, school, and law enforcement records, shall be equally available to both parents, in all types of custody arrangements.
(7) Modification
(a) An order, judgment, or decree of joint legal custody, joint physical custody, or any provision thereof may be modified if it is in the best interest of the child to do so.
(b) Enactment of this statute does not in and of itself constitute grounds for modification of an existing order; provided, however, an existing custody or visitation order may be modified to joint custody if it is in the best interest of the child to do so.
(8) Effect on Child Support
(a) An award of joint custody shall not by itself diminish the responsibility of each parent to provide for the support of the child in accordance with section [reference would be made to the state's general child support provisions], nor shall joint custody by itself constitute grounds for modification of support order.
(b) In making an order of joint physical custody or joint legal custody, the court may specify one parent as the primary caretaker of the child and one home as the primary home of the child for the purposes of defining eligibility for public assistance.
(c) In making the determination of child support, the court shall consider, in addition to the factors specified in section [reference would be made to the state's general child support provisions], the ability of each parent to maintain adequate housing for the child, and the court may order modified support payments to continue during a period when the child is not residing in the home of the obligee.
a. The court may specify how payments shall be made for extraordinary expenses such as child care expenses, school tuition, or major medical and dental expenses.
(9) Parental Kidnapping and Custodial Interference
(a) The fact that joint custody has been awarded to both parents does not preclude a court from finding that one parent has committed a violation of section [reference would be made to the state's custodial interference and/or parental kidnapping law, if the state has such laws].
(b) In making an order of joint custody, the court shall specify the right of each parent to the physical control of the child in sufficient detail to enable a parent deprived of that control to enforce the court order and to enable law enforcement authorities to implement laws for relief of parental kidnapping.