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What Judges Consider When Determining if Joint Custody is Right for Your Children

Most people do not enter marriage thinking that they will one day get divorced. Unfortunately, statics routinely show that many marriages will end in divorce, and worse yet, most divorces happen after the couple’s children are born or adopted. When parents decide to go their separate ways, the issue of child custody must be resolved before a divorce will be granted in most states.

Many parents will go into divorce thinking they want “true joint custody.” But what does that mean exactly? If both parents agree fully on what is best for their children, true joint custody may be a possibility in their case, but “true” joint custody means that the parents work together on everything involving their children. They discuss things, and even when they disagree about how best to move forward, they can agree on who will make the final decision without having one parent designated “primary” over the other one. This situation is so rare that most experienced family court attorneys may roll their eyes at the thought of “true” joint custody.

The much more realistic scenario we see in family court is when the parents have trouble agreeing on much of anything for or about their children. In these situations, even if one parent is asking for a “true” joint custody final order, the family court must get involved in deciding the custody and parenting time schedules for the parents. Below is an outline of the factors that South Carolina family court judges will consider when deciding if true joint custody is right for your children.

How well do the parents get along?

Even before there is a final ruling on child custody, the judge will look at the evidence before the court on how the parties get along with each other in all realms, not just the parenting decisions. The court will look at whether the parties can communicate with each other, whether they show mutual respect, and if they are able to work together on decisions that need to be made. This is not always an easy task for the family court judge. They will often rely on reports from mental health professionals, social workers, teachers, and others who have observed the parties and their interactions. If the parents have a history of not being able to get along or communicate with each other, it will be difficult for the court to find that “true” joint custody is in the best interest of the children.

What are the ages of the children involved?

When making a decision about joint custody, the court will also look at how old the children are. If they are very young, it is often easier for the court to find that “true” joint custody is not in their best interest. This is because very young children need more stability and routine in their lives than older children. They may do better if they have one primary caregiver who can provide that stability and routine. As children get older, they often have more input as to which parent they want to live with and why. The court will still consider the ages of the children when making a custody determination but may be more willing to find that “true” joint custody is an option for older children.

Do the parents live close to each other?

Another factor the court will consider is how close the parents live to each other. If the parents live in different cities, towns, or even states, it will be much more difficult for them to have “true” joint custody of their children. This is because it would be logistically difficult for the children to spend an equal amount of time with both parents if they do not live close by. The court may still order joint custody in these situations, but it may designate one parent as the primary custodial parent and set up a parenting schedule that allows the children to spend significant time with both parents.

It may still be possible for the parents to have “true” joint legal custody, where they have equal decision-making authority even if they live far apart, but again, as we’ve discussed above, the parents need to be equally involved in the daily information about the child for this to work. If one parent is not actively seeking information to stay fully involved in what the children’s day-to-day lives are like, even when the parent isn’t physically present, it will be difficult to be able to help make decisions for the child – at least on a day-to-day basis.

Do the parents have any drug or alcohol abuse issues?

If either of the parents has a history of drug or alcohol abuse, the court will likely not find that “true” joint custody is in the best interest of the children. This is because one of the key factors the court looks at is whether the parents can put the needs of their children ahead of their own. If there is a history of drug or alcohol abuse, it will be harder for the court to find that parent is able to do that consistently. The court will also be hesitant to require a sober parent to constantly involve a non-sober parent in the day-to-day decisions about the child. This could just be setting the parents and the children up for more tension, problems, and ultimately future litigation, something most family court judges will want to spare children of divorce if at all possible.

Final Thoughts

These are just some of the factors that a judge will look at when deciding whether “true” joint custody is in the best interest of the children. Joint custody can work in many different families, but it really depends on the unique circumstances of each case. If you are considering divorce and have children, it is important to honestly evaluate whether you and your spouse will be able to co-parent in a healthy, productive way right from the start or whether you may need to rely on the Court to set the rules for your parenting, at least initially. Child custody orders can always be re-evaluated in the future if circumstances change, and the best interests of the children would be served by the changes.

If you and your spouse are considering divorce, don’t make any decisions about how to proceed before talking with a trusted attorney in your area. Your divorce and any child custody arrangements you create will be subject to your state’s divorce and child custody laws. Without discussing your situation with an attorney, your agreement may not be what you want or what is beneficial to your or your children’s future.

If you’re struggling with issues surrounding child custody or need help finding the best ways to build a cooperative parenting agreement with your co-parent, talking with an experienced family court attorney will help. If you’re in South Carolina, contact a trusted family law attorney like Ben Stevens today to discuss your specific situation. Even if you aren’t in South Carolina, Mr. Stevens is happy to offer referrals to a well-qualified attorney located in your state.

Ben Stevens has provided exceptional legal counsel and support to families throughout South Carolina for over twenty-five years, handling all matters of family law, such as prenuptial agreements, divorce, separation, alimony, and child custody. Our firm is well-equipped to handle all divorce and family law matters, no matter your circumstances. Contact our office at (864) 598-9172 or SCFamilyLaw@offitkurman.com to schedule an initial consultation.


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Author: J. Benjamin Stevens
Articles have been Reprinted with permission from the charlotte observer and Mike Hunter.

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