Before 1980, family law judges in the Golden State, and all other states for that matter, almost always decided contested custody cases in the mother’s favor, even if there were some questions about the mother’s fitness. At this time, divorce was impossible absent marital fault, like cruelty or abandonment. As a result, there was a latent assumption in the law that if Husband had been a bad spouse, he would probably be a bad father as well and have little or no regard for the best interests of the children.

That all changed when early fathers’ rights advocate James Cook convinced California lawmakers to pass the nation’s first joint custody law. When Mr. Cook and his then-wife initiated divorce proceedings in 1974, a family court judge supposedly told him that he lacked standing to ask for custody and that, by default, the mother would always win. Later, Assemblyman Charles Imbrecht (R-Ventura) agreed to sponsor a joint custody bill, even though the entire concept was unheard of at the time. The law removes gender preferences and states that all such decisions should be based on the best interests of the children, and also consider whether a parent would encourage “frequent and continuing contact” between the noncustodial parent and the children.

Today, joint custody has fallen out of favor in many jurisdictions, but it is still the law of the land in California. What are the legal factors that the court considers in these cases, and what are some common joint custody arrangements?

Joint Custody Models

In many states, joint custody is more like shared custody, because children are with the custodial parents about 70 percent of the time. Indeed, some psychologists believe that younger children need to “live” with one parent and “visit” the other one. Moreover, in many cases, residual gender discrimination still exists. For example, some states have laws that allow only short-term and/or supervised visits between noncustodial fathers and very young children, based largely on the assumption that fathers are incapable of caring for such children and are also largely unwilling to do so.

But California is one of the last true “joint custody” states, and while there is no model parenting time share plan in the Family Code, most such arrangements are:

• Alternating 2-2-3: Children spend Monday and Tuesday with Parent A, Wednesday and Thursday with Parent B, and Friday, Saturday, and Sunday with Parent B. Then, the schedule flips. This arrangement works best if the parents live in the same ZIP code, or at least in the same city or school district.
• Bird’s Nest: If the parents live further apart, yet still within driving distance, the parents switch homes instead of the children. This arrangement has an additional benefit, in that the children never move. In most typical situations, the children always stay in the family home while Mother and Father shuttle back and forth between a nearby apartment or smaller house, usually on a bi-monthly basis.
• Extended Weekend: If the parents live far apart (such as San Diego and Chico), the noncustodial parent may receive visitation from Thursday night through Tuesday morning, in addition to full-time summer visitation. The timeshare arrangement is not quite 50-50, but it is about the closest thing possible if distance is an issue.

Time and money are both issues at greater distance, so in many cases, joint custody is simply not practical.

According to this resource, there is also a presumption in favor of joint legal custody in California, so both parents have an equal say in how the children are raised, at least theoretically. Most custody orders state that the parents should jointly make important decisions, such as where the children will go to school, what physician they will see, and what religious and/or secular activities they will participate in. However, practically speaking, parent often make these decisions unilaterally, especially if the other parent is adamantly opposed to a certain position and there is basically a 1-1 tie vote.

To obviate situations like these, many divorce orders contain specific directions, e.g. “the children shall be raised Jewish” or “the children will attend Catholic schools.” Moreover, mediation is often a good way to break tie votes.

Sole Custody

Joint custody is not always in the children’s best interests. According to Family Code 3040, if joint custody is not an option, the biggest factor is which parent is the best co-parent. Other factors include the children’s health, safety, and welfare and the parent’s interest in custody. There is no shame in wanting to be a “weekend parent” with few or no parental responsibilities, but there is considerable shame in wanting child custody simply so the other parent must take a subservient role.

If there are safety issues, such as domestic abuse allegations, many judges order limited or supervised visitation, at least until one parent completes a counselling program, the children are older, or other milestones occur. For practical purposes, most sole custody time-sharing arrangements are an every other weekend, every other holiday, and split summer schedule.