Joint custody legislation in the U.S.

Today, a presumption or preference for joint custody exists in at least 30 states plus the District of Columbia.  Joint custody preferences and presumptions typically take one of three forms: a) a presumption that joint custody is in the best interests of the child; b) a stated preference by the legislature, without a strict presumption; c) a presumption that joint custody is in the child's best interest where both parents agree.  In some cases the preference or presumption is for joint legal custody, while in others, it is for true shared parenting.  Recently passed legislation has tended to favor stronger presumptions that protect the child's right to both parents.  (See in particular Wisconsin, Oklahoma, and Maine, which passed a much stronger statute in 2001.) 

This information is being gathered to assist children's advocates advising legislators in becoming more knowledgable about the provisions and language used in joint custody legislation. Legislation has been introduced in many states to provide a preference or presumption for shared parenting/joint physical or for joint legal custody, or to strengthen existing law. The bills listed below were introduced in recent sessions of their respective legislatures.  This list is incomplete, and will be added to as we obtain information about activities in other states. If you know of legislation in your state, please let us know by email and we'll add it: mdcrc@yahoo.com 


Presumptions and Legislation for Joint Custody and Shared Parenting

Source: American Bar Association and state legislatures 


ALABAMA Statute

PASSED, effective 1997

"It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. "


ARIZONA Bill Text

S.B. 1290 - 1998

Amends present law by emphasizing parental responsibility toward children and eliminating concepts of possessory rights that may promote conflict between parents.

9. Specifies that the court shall presume that a child is entitled to substantial contact and residential time with each parent and that each parent shall have substantial decision making authority.


ARKANSAS - Statute

PASSED, 1999- presumption in favor of joint custody

§ 9-13-101. Award of custody.

 (a)  In an action for divorce, the award of custody of the children of the marriage shall be made without regard to the sex of
 the parent, but solely in accordance with the welfare and best interests of the children.

 (b)(1)  When in the best interests of a child, custody shall be awarded in such a way so as to assure the frequent and
 continuing contact of the child with both parents.

    (2)  To this effect, in making an order for custody to either parent, the court may consider, among other facts, which
    parent is more likely to allow the child or children frequent and continuing contact with the noncustodial parent.


CALIFORNIA

PASSED - presumption in favor of joint custody if both parents agree.


COLORADO -  Statutes

PASSED - preference for joint custody

SECTION 10. 14­10­124, Colorado Revised Statutes:

14-10-124. Best interests of child. (1) Legislative declaration. The general assembly finds and declares that it is in the best interest of
all parties to encourage frequent and continuing contact between each parent and the minor children of the marriage after the parents
have separated or dissolved their marriage. In order to effectuate this goal, the general assembly urges parents to share the rights and
responsibilities of child-rearing and to encourage the love, affection, and contact between the children and the parents.


CONNECTICUT

PASSED - presumption in favor of joint custody if both parents agree.



 

DELAWARE - Statutes

PASSED - preference for joint custody

 § 728. Residence; visitation; sanctions.

(a)  The Court shall determine, whether the parents have joint legal custody of the child or one of them has sole legal custody of the child, with which parent the child shall primarily reside and a schedule of visitation with the other parent, consistent with the child's best interests and maturity, which is designed to permit and encourage the child to have frequent and meaningful contact with both parents unless the Court finds, after a hearing, that contact of the child with 1 parent would endanger the child's physical health or significantly impair his or her emotional development.


DISTRICT OF COLUMBIA

PASSED - presumption in favor of joint custody.


FLORIDA Statute

PASSED - presumption in favor of joint custody.

61.13 Custody and support of children; visitation rights; power of court in making orders.

(b)1. The court shall determine all matters relating to custody of each minor child of the parties in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act. It is the public policy of this state to assure that each minor child has frequent and continuing contact with both parents after the parents separate or the marriage of the parties is dissolved and to encourage parents to share the rights and responsibilities, and joys, of childrearing. After considering all relevant facts, the father of the child shall be given the same consideration as the mother in determining the primary residence of a child irrespective of the age or sex of the child.

Shared Parenting After Divorce - from the Florida Bar Association


GEORGIA - Bill Text

SB 187 - Child Custody

First Reader Summary:  A bill to amend Article 1 of Chapter 9 of Title 19 of the Official Code of Georgia Annotated, relating to general provisions relative to child custody proceedings, so as to provide a presumption of joint legal and physical custody; to provide for exceptions; to provide for a rebuttal of such presumption; to provide for the quantum of evidence required to rebut.


IDAHO Statute

PASSED - presumption in favor of joint custody.

32-717B.

(4) Except as provided in subsection (5), of this section, absent a preponderance of the evidence to the contrary, there shall be a presumption that joint custody is in the best interests of a minor child or children.

(5) There shall be a presumption that joint custody is not in the best interests of a minor child if one (1) of the parents is found by the court to be a habitual perpetrator of domestic violence as defined in section 39-6303, Idaho Code.



 

INDIANA  1999 Bill Text

HOUSE BILL No. 1026

 Synopsis: Joint custody. Requires a court to consider whether joint legal or physical custody, or both, would be in the best
interests of the child whenever the court determines child custody in dissolution of marriage cases. Requires the court to
consider certain relevant factors when making the joint custody determination. Requires the court to order joint legal or physical
custody, or both, whenever the court finds that the award would be in the best interests of the child. (Under current law, it is
optional whether a court considers an award of joint custody.)



 

IOWAStatute

PASSED - presumption in favor of joint custody.

598.41 Custody of children.

1. a. The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

2. b. If the court does not grant joint custody under this subsection, the court shall cite clear and convincing evidence, pursuant to the factors in subsection 3, that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed.


KANSAS - Presumptive Shared Parenting

PASSED - presumption in favor of joint custody.

Current Kansas Statute 60-1610

Chapter 60.--PROCEDURE, CIVIL

Article 16.--DIVORCE AND MAINTENANCE

(4) Types of custodial arrangements. Subject to the provisions of this article, the court may make any order relating to custodial arrangements which is in the best interests of the child. The order shall include, but not be limited to, one of the following, in the order of preference:

(A) Joint custody. The court may place the custody of a child with both parties on a shared or joint-custody basis. In that event, the parties shall have equal rights to make decisions in the best interests of the child under their custody. When a child is placed in the joint custody of the child's parents, the court may further determine that the residency of the child shall be divided either in an equal manner with regard to time of residency or on the basis of a primary residency arrangement for the child. The court, in its discretion, may require the parents to submit a plan for implementation of a joint custody order upon finding that both parents are suitable parents or the parents, acting individually or in concert, may submit a custody implementation plan to the court prior to issuance of a custody decree. If the court does not order joint custody, it shall include in the record the specific findings of fact upon which the order for custody other than joint custody is based.

NEW:

Kansas Legislative Services See bills #629, 2816, 2862.

NOTE: Kansas already has a preference for joint custody (see below); these bills are intended to strengthen the protection of a child's right to both parents.

State of Kansas Bill # 629

"The legislature finds it is in the best interest of a minor child to maintain, to the greatest extent possible, the ongoing involvement of both parents in the life of the minor child. The legislature further finds that parents should maintain continued communications to make as many joint decisions in performing such parenting functions as are necessary for the care and healthy development of the minor child"


KENTUCKY  Bill Text

SB 290

"Creates new sections of KRS Chapter 403 to provide for the equal sharing of parenting and custody in the best interest of the child; Creates new sections of KRS Chapter 403 which states a presumption that shared parental custody is in the best interest of the child and then creates a preferential list for who should receive parental custody; creates a crime called parental interference and makes it a Class D felony. "


LOUISIANA

PASSED - presumption in favor of joint custody.




MAINE  Bill Text

PASSED, 2001

On May 31, 2020 the governor of Maine signed LD 1405, which will be effective 09/21/01 requiring a "presumption of joint custody".

SUMMARY.  This bill establishes the policy that parents should be awarded shared parental rights and responsibilities unless the court finds that the
joint responsibility would not be in the child's best interest. The court must provide that the parents equally share the responsibility for
providing their child's residential care, unless the court makes a finding that the equal sharing is not in the child's best interest. The
parents may agree to a sharing of parental rights and responsibilities, including the provision of residential care, which the court must accept
or provide written reasons why the agreement is not in the child's best interest.


MARYLAND- Bill Text

HB 425 - Rebuttable Presumption of Joint Legal Custody

" (A) IN AN INITIAL CUSTODY PROCEEDING, WHETHER PENDENTE LITE OR PERMANENT, INVOLVING THE PARENTS OF A MINOR CHILD, THERE IS A REBUTTABLE PRESUMPTION THAT AN AWARD OF JOINT LEGAL CUSTODY IS IN THE BEST INTERESTS OF THE CHILD."


MICHIGAN

PASSED - presumption in favor of joint custody if both parents agree.


MINNESOTA

PASSED - presumption in favor of joint legal custody but not physical custody


MISSISSIPPI

PASSED - presumption in favor of joint custody if both parents agree.

NEW: Bill Text

Senate Bill 2047

Code Section: A 093-0005-0024

Title: AN ACT TO AMEND SECTION 93-5-24, MISSISSIPPI CODE OF 1972, TO REQUIRE THE COURT, IN AWARDING CUSTODY OF MINOR CHILDREN, TO CONSIDER JOINT PHYSICAL AND LEGAL CUSTODY AS A PRIORITY AND TO DIRECT THE COURT TO DISREGARD THE PARENT'S GENDER IN AWARDING CUSTODY; TO REQUIRE PARENTS TO SUBMIT AN IMPLEMENTATION PLAN FOR ORDERS OF JOINT CUSTODY; AND FOR RELATED PURPOSES.


MISSOURI

PASSED - presumption in favor of joint custody.

NEW: Bill Text

HB 771 -- Child Custody and Child Support

The bill creates a rebuttable presumption that joint legal and physical custody is in the child's best interests and should be awarded in child custody cases. Joint legal custody means that parents share in making major decisions relating to the welfare of their child.  The bill also requires judges who do not award joint legal and physical custody to consider an award of joint legal and sole physical custody before awarding either party sole custody of the child. Also, if the judge awards sole custody, then the judge is required to award the non-custodial parent appropriate and substantial temporary custody.


MONTANA

PASSED - presumption in favor of joint custody.



 

NEW JERSEY

NEW BILL - Full Bill Text

Excerpts:

1.  The Legislature finds and declares that:
 a.  It is the intent of the Legislature through the adoption of this act to  promote the public policy of this State to endorse the principle that children have frequent and continuing physical time with their parents when the parents live separately or after parental separation ordissolution of marriage. ...
...

2. There shall be a presumption in court determinations of childcustody that joint physical custody and shared physical custody responsibility shall be ordered if it is in the best interests of the child. Upon request of one or both parents for joint physical custody, the court shall so order unless it finds compelling reasons to not award joint physical custody.  If joint physical custody is not ordered, the court's order shall include findings why joint physical custody is not in the best interests of the child.



 

NEVADA Bill Text

PASSED - presumption in favor of joint custody if both parents agree.

NRS 125.460 State policy. The legislature declares that it is the policy of this state:

1. To ensure that minor children have frequent associations and a continuing relationship with both parents after the parents have become separated or have dissolved their marriage; and

2. To encourage such parents to share the rights and responsibilities of child rearing.


NEW HAMPSHIRE

PASSED - presumption in favor of joint custody.


NEW MEXICO

PASSED - presumption in favor of joint custody.


NEW YORK
Bill Text - A00182 Establishes the presumption in matrimonial proceedings of awarding shared parenting of   minor children - 1999
The provisions of this
   11  act establish a presumption, affecting the burden of proof, that  shared
   12  parenting is in the best interests of minor children.



 

A. 3950--B Rebuttable Presumption of Shared Parenting. - 1998

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets { } is old law to be omitted. LBD02019-08-8 A. 3950--B

(a) Where a minor child is residing within this state, either parent may apply to the supreme court for a writ of habeas corpus to have such minor child brought before such court; and on the return thereof, the court, on due consideration, {may} SHALL award the natural guardianship, charge and custody of such child to {either parent} BOTH PARENTS, IN THE ABSENCE OF AN ALLEGATION THAT SUCH SHARED PARENTING WOULD BE DETRIMENTAL TO SUCH CHILD, for such time, under such regulations and restrictions, and with such provisions and directions, as the case may require, and may at any time thereafter vacate or modify such order. {In all cases there shall be no prima facie right to the custody of the child in either parent, but the} THE BURDEN OF PROOF THAT SUCH SHARED PARENTING WOULD BE DETRIMENTAL TO SUCH CHILD SHALL BE UPON THE PARENT REQUESTING SOLE CUSTODY.


OHIO  Statute

PASSED - presumption in favor of joint custody.

(c) Whenever possible, the court shall require that a shared parenting plan approved under division (D)(1)(a)(i), (ii), or (iii) of this section ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact with any parent would not be in the best interest of the child.



 

OKLAHOMA

PASSED, 1999 - presumption in favor of joint custody.

Statutes as Section 110.1 of Title 43, unless there is created a duplication in numbering, reads as follows:

It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interests of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage.  To effectuate this policy, if requested by a parent, the court shall provide substantially equal access to the minor children to both parents at a temporary order hearing, unless the court finds that such shared parenting would be detrimental to such child.  The burden of proof that such shared parenting would be detrimental to such child shall be upon the parent requesting sole custody.



 

OREGONStatute

PASSED - presumption in favor of joint custody.

107.105 Provisions of decree. (1) Whenever the court grants a decree of marital annulment, dissolution or separation, it has power further to decree as follows:

(a) For the future care and custody, by one party or jointly, of all minor children of the parties born, adopted or conceived during the marriage, and for minor children born to the parties prior to the marriage, as the court may deem just and proper pursuant to ORS 107.137. The court may hold a hearing to decide the custody issue prior to any other issues. When appropriate, the court shall recognize the value of close contact with both parents and encourage joint parental custody and joint responsibility for the welfare of the children.

(b) For parenting time rights of the parent not having custody of such children, and for visitation rights of grandparents pursuant to a petition filed under ORS 109.121. When a parenting plan has been developed as required by ORS 107.102, the court shall review the parenting plan and, if approved, incorporate the parenting plan into the court's final order. When incorporated into a final order, the parenting plan is determinative of parenting time rights. If the parents have been unable to develop a parenting plan or if either of the parents requests the court to develop a detailed parenting plan, the court shall develop the parenting plan in the best interest of the child, ensuring the noncustodial parent sufficient access to the child to provide for appropriate quality parenting time and assuring the safety of the parties, if implicated. The court may deny parenting time to the noncustodial parent under this subsection only if the court finds that parenting time would endanger the health or safety of the child. The court shall recognize the value of close contact with both parents and encourage, where practicable, joint responsibility for the welfare of such children and extensive contact between the minor children of the divided marriage and the parties.


PENNSYLVANIABill Text

HB 1723 - 1998

"'Joint custody'. Joint legal and physical custody."

"Award of custody, partial custody or visitation. General rule.An order for joint custody shall be awarded by the court unless the court finds that joint custody is not in the best interest of the child. There shall. be a rebuttable presumption that an award of joint custody is in the best interest of the child. The court state on the record the reason for an award other than an award of joint custody."


SOUTH CAROLINA - Bill Text

- GB 3981  TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-2020 SO AS TO PROVIDE  THAT THE BEST INTERESTS OF THE CHILD IS THE GUIDING PRINCIPLE IN RESOLVING CHILD CUSTODY AND  VISITATION DISPUTES, TO PROVIDE THAT THE BEST INTERESTS OF THE CHILD ARE SERVED WHEN THE CHILD'S  RELATIONSHIP WITH EACH PARENT IS EQUALLY PROMOTED AND ENCOURAGED, TO PROVIDE THAT THE COURT MUST STRIVE TO EQUALIZE EACH PARENT'S TIME WITH AND OPPORTUNITIES TO BE INVOLVED IN THE CHILD'S LIFE, AND TO PROVIDE THAT JOINT CUSTODY IS NOT REQUIRED BY THIS SECTION NOR MAY VISITATION AWARDED IN ACCORDANCE WITH THIS SECTION BE CONSTRUED AS JOINT CUSTODY.


TENNESSEE - Statute

PASSED Effective May 15, 2020- presumption in favor of joint custody if both parents agree.

36-6-101. Decree for custody and support of child (a)

(2) Except as provided in the following sentence, neither a preference nor a presumption for or against joint legal custody, joint physical custody or sole custody is established, but the court shall have the widest discretion to order a custody arrangement that is in the best interest of the child. Unless the court finds by clear and convincing evidence to the contrary, there is a presumption that joint custody is in the best interest of a minor child where the parents have agreed to joint custody or so agree in open court at a hearing for the purpose of determining the custody of the minor child. For the purpose of assisting the court in making a determination whether an award of joint custody is appropriate, the court may direct that an investigation be conducted. The burden of proof necessary to modify an order of joint custody at a subsequent proceeding shall be by a preponderance of the evidence

.


TEXAS - Statute

PASSED, effective 1995

CHAPTER 153. CONSERVATORSHIP, POSSESSION, AND ACCESS SUBCHAPTER A. GENERAL PROVISIONS

Sec. 153.001. Public Policy.

"(a) The public policy of this state is to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;"

SUBCHAPTER C. PARENT APPOINTED AS SOLE OR JOINT MANAGING CONSERVATOR

Sec. 153.131. Presumption That Parent to be Appointed Managing Conservator.

"(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child."


VERMONT

PASSED - presumption in favor of joint custody if both parents agree


VIRGINIA Bill Text

HB 1239

" B. In determining parenting arrangements , the court shall give primary consideration to the needs of the child. The court shall assure minor children of frequent and continuing contact with both parents and shall presume that both parents shall share in the responsibilities of rearing their children."


WASHINGTON

PASSED - presumption in favor of joint custody if both parents agree.

NEW: Bill Text

HOUSE BILL 2407

{+ NEW SECTION. +} Sec. 3. A new section is added to chapter 26.09 RCW to read as follows:

(1) There shall be a presumption that shared parental responsibility is in the best interests of minor children unless:
(a) The parents have agreed to an award of residential placement or decision-making authority to only one parent; or
(b) The court finds that shared parental responsibility would be detrimental to the child or children.
(2) A parent alleging that shared parental responsibility would be  detrimental to the child or children shall have the burden of establishing the allegation.



 

WEST VIRGINIA  1999 Bill Text

PASSED, 1999 - presumption in favor of joint custody.

"The child's best interests are defined as: stability; planning and agreement about custodial arrangements and upbringing; continuing and meaningful contact between the child and each parent; assuring that the child is in a healthful and secure environment; and expeditious decision making process regarding arrangements for the child's care and control."

"If each of the child's legal parents has been exercising a reasonable share of parenting functions for the child, the court shall presume that an allocation of decision-making responsibility to both parents jointly is in the child's best interests."



 

WISCONSIN 1999 Bill Text   Sections 767.23-24 (pages 628-631)

PASSED, 1999 - presumption in favor of joint custody.

767.24 (2) (am) "The court shall presume that joint legal custody is in the best interest of the child."

767.24 (4) (a) "The court shall set a placement schedule that allows the child to have regularly occurring, meaningful periods of physical placement with each parent and that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accomodations for different households".


More information on joint custody laws can be found at the American Bar Association (reasonably, but not completely, up to date) - State Laws Regarding Joint Custody


last changed 6 August 2020