Who May File for Joint Custody of a Minor?

By Anna Green

Father and son

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Laws regarding child custody vary between jurisdictions. State laws and statutes govern how the court awards custody and how custody matters are defined and labeled. Generally, however, physical custody involves the day-to-day care of a child. Legal custody may overlap with physical custody and involves the right of a party to make decisions about a child’s health, education and welfare. Physical and legal custody can be either joint—shared by two parents—or sole, entrusted to only one parent.

Custody Arrangements

Custody arrangements can take many forms. For example, one parent can have sole physical custody, while both parents have joint legal custody. Likewise, both parents might share legal and physical custody. In most situations, however, a parent with physical custody will also have legal custody. Either parent can apply for joint custody. This is a typical status for which parents often apply. When parents have joint physical custody, the court will generally require them to formulate a parenting plan. This plan will generally need to outline the custody arrangement in detail, specifying how much time the child will spend with each parent. In order for the court to approve this parenting plan, the judge will generally need to ensure that it is in the child’s best interests.

Contested Custody

If one parent files for sole custody and the other parent requests joint custody, the court will generally hold a hearing on the merits of each parent’s request. If parents agree to joint custody but cannot reach a mutually agreeable parenting plan, the court can hold a hearing to resolve the contested issues. The court might be reluctant to give joint custody to parents who are unwilling to cooperate with one another or who cannot reach resolutions on major parenting issues, however.

Parental Death

If a child’s parents are deceased, then non-parent relatives, including grandparents, adult siblings and aunts and uncles may file for joint custody of the child. However, if one of the child’s parents is living, the court will generally presume that the child’s natural parent is the proper custodian. The court will make this presumption regardless of whether the living parent was the child’s caregiver prior to the other parent’s death. For a grandparent or other relative to successfully file for joint custody of the child, that party would need to show evidence proving that the child’s living parent is unfit to act as a custodian. For example, if the parent has an active, untreated drug addiction or has a history of child abuse or other violence, the court may grant joint custody to another relative.

Parental Unfitness

Even if a child’s parent or parents are alive, a grandparent or other relative may be able to obtain joint custody of the child if they can prove that the parent or parents are unfit in some states. To do so, these relatives would need to prepare a motion to modify an existing custody order or enter a new custody order if none is currently in place. When considering a motion to grant joint custody on the grounds of parental unfitness, the court will generally hold a hearing to evaluate what arrangement is in the child's best interests. If the court determines that joint custody would best serve the child’s needs, the court will enter an order giving shared custody rights to the parent and petitioning relative.