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Published online by Cambridge University Press: 01 March 2011
Over the last few years, different jurisdictions have retreated from the winner-takes-all notion of custody in different ways. That process has moved further in some European jurisdictions than it has in most of the United States, but the direction of the movement is the same.
THE MOVEMENT TOWARD JOINT CUSTODY IN THE UNITED STATES
That process began in the early 1980s with the movement toward joint legal custody in many States. Courts and legislatures began to respond to a shift in emphasis from the need of the child to have an attachment to one “psychological parent” to a need for children to maintain relationships with both parents. Pressure for a legal presumption that the court should award joint legal custody was particularly strong in North America, but it was also experienced in other western countries.
The term “joint custody” is a term with multiple usages in different parts of the United States. The position is well summed up by Ann Estin:
[I]n practice “joint custody” is not a single, unitary category…. Joint custody sometimes refers to sole legal custody in one parent combined with some form of shared residence. This arrangement allows parents to “share access to children and child-rearing responsibilities,” and, depending on the time-sharing provisions, may permit frequent and prolonged contact. While some monitoring can occur with this pattern, it does not give the nonprimary parent a right to control or even to participate in decisions concerning the children. Alternatively, divorced parents might have joint decisionmaking authority, while the children reside primarily (or almost exclusively) with one of them.[…]
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