Survey of States
The following is information taken directly from the Report.
No state (nor D.C.) has a presumption of equal physical custody. As set out below, eight states and the District of Columbia have a presumption in favor of joint custody (i.e. legal custody). This includes Minnesota. Another three states have laws that require courts to “consider” joint custody in making an award of custody. Nine states require the parties to agree on joint custody before a presumption applies. Of the remaining states, 26 have a best interest of the child standard for determining custody and five have neither a presumption, nor a best interest standard. Twenty-two States have presumptions against joint custody where there is a history of domestic violence, child abuse, sexual abuse, and/or where a parent has been convicted of certain crimes. Another 18 states require courts to consider evidence of domestic violence, child abuse, etc. as part of the “best interest” analysis. At least four states have laws that give a parent that has the child less than half the time a presumptive amount of time with the child: Delaware (standard visitation order), Minnesota (25% presumption of parenting time), Oklahoma (standard visitation order) and Texas (standard possession order).
States with a statutory “joint custody” presumption
Florida* 61.13(c) 1 The court shall determine all matters related to parenting and time-sharing of each minor child in accordance with the best interests of the child…2. The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child (2b of this same law says the court shall order sole parental responsibility for a minor child to one parent, with or without time-sharing with the other parent when it is in the best interests of the child)
Idaho 32-717B(4) presumption that joint custody is in the best interest of the child (definition of joint custody says the court may award either joint physical or joint legal or both)
Louisiana* Section 3, Article 131 the court shall award custody in accordance with the best
interests of the child. Article 132 In the absence of an agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly. (Joint custody is where an order allocates time periods each parent will have physical custody of the child, there may be a domiciliary parent with whom the child shall primarily reside – that parent also makes all decisions affecting the child.)
Minnesota* 518.17, subd. 2 the court shall use a rebuttable presumption that upon the request of either or both parents joint legal custody is in the best interests of the child (Presumption of 25% parenting time.)
New Mexico* 40-4-9.1 presumption that joint custody is in the best interest of the child in an
initial custody determination (an award of joint custody means that each parent shall have
significant, well-defined periods of responsibility for the child. Joint custody does not imply an
equal division of the child’s time between the parents or an equal division of financial
responsibility for the child.)
1. In determining custody the sole consideration is the best interest of the child.
3. The court shall award custody in the following order of preference (unless best interests
require otherwise) (a) to both of the parents jointly pursuant to 125.490 or to either parent
125.490 – presumption if parents agree to joint custody (where parents have agreed to joint legal custody the court can award joint legal custody without awarding joint physical custody.)
Texas* §153.131 (b) rebuttable presumption that the appointment of the parents of the child as joint managing conservators is in the best interest of the child. (§153.135 says Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child…) Standard provisions for possessory conservatorship.
Wisconsin* 767.41 the court shall presume that joint legal custody is in the best interest of the child
Washington D.C. rebuttable presumption that joint custody is in the child’s best interest (joint
custody is not defined, looks like it could be joint legal only)
States that require the court to consider joint custody
Alabama* Section 30-3-152 requires court to consider joint custody in every case, but may
award any form of custody in the child’s best interest (joint custody not defined, specifically says joint physical is not necessarily equal durations of time)
Iowa* Section 598-41 On the application of either parent, the court shall consider granting
joint custody. If the court does not grant joint custody, the court shall cite clear and convincing
evidence that joint custody is unreasonable (joint custody is defined as joint legal custody)
Missouri* Section 452.375
1. Joint Custody awards each parent significant, but not necessarily equal time
2. The court shall determine custody in accordance with the best interests of the child
5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the
court shall consider the following as follows: (1) Joint physical and joint legal custody; (2) Joint physical with one party granted sole legal custody; (3) Joint legal custody with one party
granted sole physical custody; (4) sole custody to either parent or (5) third-party custody.
States with a statutory presumption of joint custody (if parents agree)
California* Section 3080 presumption – if parents agree to joint custody, it is presumed to be in the best interest of the child (joint custody is not defined, sounds like it could be joint legal only)
Connecticut Chapter 815j 46b-56a same presumption as California (says joint custody means awarding joint legal custody to both parents and providing the physical custody be shared in a way that assures the child continuing contact with both parents)
Maine Section 1653 2 A presumption that when parents have agreed to shared parental rights and responsibilities the court shall make that award unless there is substantial evidence that it should not be ordered.
Michigan* Section 722.26a (2) “If the parents agree on joint custody, the court shall award joint custody unless the court determines…that joint custody is not in the best interests of the child.”
(1) “…At the request of either parent, the court shall consider an award of joint custody and shall state on the record the reasons for granting or denying a request.” (7) “Joint custody” means an order of the court in which 1 or both of the following is specified: (a) That the child shall reside alternately for specific periods with each of the parents (b) That the parents shall share decision making authority as to the important decisions affecting the welfare of the child.”
Mississippi Section 95-3-24(4) presumption applies when both parties have agreed to joint
custody (joint custody means joint legal and joint physical custody – joint physical custody
means that each parent will have significant periods of physical custody)
New Hampshire* 461-A:5 presumption that joint decision-making responsibility (i.e. legal
custody) is in the best interest of the child where the parents agree to it SCAO - Joint Physical Custody Study Group September 22, 2008 Page 4
Oregon* 107.169 subd. 4 When parents have agreed to joint custody in an order or judgment, the court may not overrule that agreement by ordering sole custody to one parent. Subd. 3 (immediately preceding the language above) says “The court shall not order joint custody, unless both parents agree to the terms and conditions of the order.”
Tennessee 36-6-101(2)(A) presumption where parents have agreed to joint custody, otherwise specifically states that neither a preference nor a presumption for or against joint legal, joint physical or sole custody is established.
Vermont* Section 666 presumption – any agreement between the parents which divides or
shares parental responsibilities shall be presumed to be in the best interests of the child.
States with a “best interest of the child” standard*
*Some of the states listed above also use a best interest standard – where there is no agreement, or as a basis for deciding whether joint custody is appropriate. They are marked with an asterisk
Delaware (Standard visitation order)
Oklahoma (standard visitation order)
States that did not have a presumption or a best interest standard
Thursday, February 26, 2009
Minnesota Shared Parenting Report - Part VIII
Survey of States