Legal Guide

What is Shared Custody in a Divorce?

The term “shared custody” refers to the sharing of custody of a minor child or children between parents who are legally separated or divorced. Parents can work out their own custody arrangement. They can submit this agreement to a judge, who will issue it as a court order.

When parents cannot agree on a custody arrangement, the judge may send them to a mediator. If the parties cannot work out an arrangement with the mediator, the judge will make a decision. If the parents cannot afford attorneys, the court will appoint ones for them. It may also appoint an attorney for the child.

Custody has two components, physical and legal. Physical custody refers to the party with whom the child lives. Legal custody concerns who makes important decisions about the child’s welfare, such as their education, medical care, and religious upbringing.

There are two types of physical custody. The first is joint custody, in which the child lives with both parents, at different times. For example, one parent will have the child Monday through Thursday. The other parent will have the child Friday through Sunday. The other type of physical custody is sole or primary custody, in which the child lives with one parent the majority of the time, like during the academic school year.

Joint custody is not necessarily 50/50. The child may spend more time with one parent than the other. As per the Code of Alabama Section 30-3-150, Alabama supports awarding the parents joint custody. The court will make the decision that is in the best interests of the child.

Factors the Court Considers

The court considers a number of factors when making decisions on custody. In accordance with the Code of Alabama Section 30-3-152, these include:

  • the agreement or lack of agreement of the parents on joint custody
  • the past and present ability of the parents to cooperate with one another and make decisions together
  • the ability of the parents to encourage the sharing of love, affection and contact between the child and the other parent
  • any history of or potential for child abuse, spouse abuse, or kidnapping and
  • the geographical proximity of the parents to each other.

The court may order a form of joint custody without the consent of both parents when this is in the best interest of the child. If both parents request joint custody, the court presumes joint custody is in the best interest of the child.

Child Support and Custody

Alabama courts do not provide guidance on the amount of child support owed by the obligor (paying parent) when there is a 50/50 shared custody situation. Individual judges may have a method of calculating support in a shared custody situation. A parent or their attorney should do research to determine the method and/or ask the court the method.

In Lee County, two judges sometimes use a formula to find the difference between what each parent’s obligation would be to the other. For example, the mother would pay the father $500 and the father would pay the mother $300. The difference is $200. The court then divides that number in half, $200 divided by 2 = $100. It orders the parent who would owe the higher amount to pay that difference. Here the mother would pay the father $100.

No matter what the custody arrangement and how much child support must be paid, the amount of child support must rationally relate to the reasonable and necessary needs of the child. The amount must also take into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce. Further, the amount must reasonably relate to the payor’s ability to pay for those needs.

The minimum amounts for child support are set by the state. The guidelines were most recently revised on May 1, 2022. The guidelines are  now reviewed every four years. If you are wanting to try to get an uncontested divorce then you and your spouse will need to reach an agreement on all custodial issues and child support. An uncontested divorce is the best way to get a cheap divorce in Montgomery or anywhere else in the State of Alabama. There is usually no court and it is mostly paperwork. However, if no uncontested divorce can be done then a judge will likely have to decide the parties custodial arrangement.

While shared custody is a common arrangement in a divorce, it's not always a 50/50 split. There are several reasons why a judge might not grant 50/50 custody, such as the parents' ability to cooperate, the child's best interests, and more. If you're interested in understanding more about this topic, you can read our detailed article on why a judge might not grant 50/50 custody. It provides an in-depth look at the reasons and factors that influence such decisions.

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