JOINT PHYSICAL CUSTODY -A working definition (Part I)

by Enrique A. Monteagudo, J.D.

This article is the first of two, which will result in a working definition for the legal term “Joint Physical Custody”.  It is the intent of these articles to add clarity to the law, increase its predictability, and encourage educated discussion.  This first article will provide an overview of the legal term “Joint Physical Custody”.  Specifically, it will begin with the statutory definition of “Joint Physical Custody” along with its legislative history, and distinguish it from lay definitions.  This first article will then provide contextual framework by discussing the common sense outer limits of a working definition, as well as the national treatment of the subject.  This article will conclude with the framework and tools for the working definition to be set forth in the second article.

As with many terms that have a legal meaning, “Joint Physical Custody” has been defined by statute.  Specifically, the Legislature has defined “Joint Physical Custody” to mean “that each of the parents shall have significant periods of physical custody,” and that joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents.  See, Family Code § 3004.  As such, when two parents have joint physical custody of a child, each is afforded “significant periods” of time to spend with the child.  Put another way, when each parent has physical custody of the child for “significant periods”, the parents share physical custody jointly.  Thus, joint physical custody” is expressly tied to the de facto parenting of the child, and a parent does not have joint physical custody where he/she is not having “frequent and continuous contact” with the child.  

As a legal term, the statutory definition of “Joint Physical Custody” is controlling.  This is important to understand because “Joint Physical Custody” can have many lay meanings, depending on whom you ask.  For example, from the perspective of a married person, custody is generally a matter of marital status, independent of which duties are assumed by either parent.  In the case of cohabitating, unmarried parents, custody may be viewed as tied to the parent’s intent to be a parent to the child.  Although the issue of Physical Custody generally is not raised with respect to intact families, for illustration, consider a soldier shipped off to a foreign country, leaving her child behind.  There, physical custody does not stop at the gang plank, and even though there is a clear separation between parent and child, the deployed soldier’s physical custody of the child is not considered to be suspended or otherwise disturbed.  To the soldier and her husband, it is sufficient that she has status and an intent to return and remain in the child’s life.  Thus, from the perspective of these parents, both would have physical custody of their child.

From different perspectives, other lay definitions are also possible.  For example, taking a very narrow perspective, physical custody of a child might be considered joint only when it is shared 50/50.  Likewise, taking a broader perspective, another lay definition might be that custody is shared jointly where both parents are readily available for the child, independent of where the child actually ends up staying.  In other words, if one were to ask three different lay persons what “Joint Physical Custody” actually means, they’d likely provide at least three different answers.

It is important to look toward the statute as the source of the term’s meaning, since there are clearly different ways of interpreting what “Joint Physical Custody” could mean.  Moreover, while alternate definitions may be interesting, the statutory definition is the only definition having the authority of law.  Also, relying on definitions that lack authority may lead to confusion, reduces predictability, and may even increase conflict as a consequence.

As shown above, the law does attempt to address this matter of definition qualitatively and quantitatively.  For example, while the Family Code does not give us a clear and final definition that applies to all cases, it gives us some definition in that it requires (qualitatively) that there be a time commitment from each custodial parent.  The Family Code also specifies (quantitatively) that the time commitment be for “significant periods” and that it amount to “frequent and continuous contact” with the child.  This overarching definition is clearly not a rigid absolute standard or a standard of mere intent, but rather it is flexible, and somewhat comprehensive.

As discussed above, as a legal term, “Joint Physical Custody” is subject to its legal interpretation rather than a lay interpretation.  As such, while it is not uncommon to hear terms-of-art such as: “Primary physical custody,” “Primary residence,” “Primary parent,” etc., these terms are not found in the Family Code and have no legal meaning[1].  Accordingly, the Family Code provides for only “Joint Physical Custody” and “Sole Physical Custody,” wherein the transition between the two occurs when both parents share “significant periods of physical custody.”

For further understanding of the statute, the Legislative history of this Family Code section may be consulted.  However, this approach is limited.  The statute’s legislative history only shows that the definition of “Joint Physical Custody” originally derives from Civil Code § 4600.5.  Additionally, while the term was amended by Stats. 1983, c. 304, § 1, there was no amendment as to “significant periods.”  Thus, the current statutory definition is substantially the same as when the term was originally introduced.

In contrast to “Joint Physical Custody”, the Legislature has also defined “Sole Physical Custody” as meaning that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation.  See, Family Code § 3007.  Thus, it is clear that while parents are sharing Joint Physical Custody” of a child, each has custody.  On the other hand, however, with “Sole Physical Custody,” only one parent has custody and the other parent visits the child.  

Without further guidance from the Legislature, the term “significant periods” is still subject to many reasonable interpretations, which in turn makes a precise definition elusive.  Nonetheless, a working definition, providing some predictability, is still possible.  

As a preliminary matter, it is useful to identify the common sense, clear cases of where there is, and is not, joint physical custody.  At one end of the scale, where the parents parent the child equal amounts of time, there is joint physical custody.  At the other end, where one parent does not see the child at all, there is not joint physical custody, but rather sole physical custody.  This will serve as a tool, or model, to be refined into the working definition.  

One step toward refining this model into a working definition would be to consider how the issue is treated throughout the nation.  Looking toward other states, considerable variation exists in the definition of joint custody and the circumstances under which it is permitted or denied.[2]  Generally, joint physical custody statutes do not define how much time the child resides with each parent, and are not interpreted as dictating a 50/50 residential time sharing. Thus, parents may elect joint physical custody, but the child may spend anywhere from 25% to 50% of his time with one of his parents, and the remainder with the other.[3]  According to one author, joint physical custody is usually defined as a schedule where the child has at least a 30/70 time share between parents, although 50/50 arrangements are common.[4]  On the federal level, the definition of joint physical custody, as used in a first-of-its-kind NCHS study, reporting figures for physical custody of children, is a minimum of 30% timeshare with each parent[5].  

At this level of analysis, there is no bright-line rule for when parental involvement meets the definition of Joint Physical Custody.  However there still exists sufficient information to determine the scope of the definition and the tools to better refine the definition.  

For example, it is clear that the law only provides for Joint and Sole physical custody.  Any other terms, however enticing they may sound, lack legal value.  Accordingly, when describing the legal relationship between separated or divorced parents and their child, there are either two custodial parents sharing physical custody jointly (generally subject to some parenting schedule), or one parent having sole physical custody (sometimes affording some form of visitation to the noncustodial parent).  Next, physical custody is tied to the actual time a parent cares for the child; it is not a mere matter of status or intent.  And finally, joint physical custody exists when both parents are caring for the child for “significant periods” (another term having some history, but lacking a predictable definition).  

With the scope of the definition and the tools for further analysis available, the second article will take a more in-depth approach at refining these definitions.  It will focus on interpretations provided by leading cases and dicta, thereby leading to a working definition of “Joint Physical Custody.”  The second article will close with a discussion on the meaning of Joint Physical Custody and ways to improve the predictability of the law.