A nationwide trend to change the custody language—doing away with the adversarial concept of “winners” and “losers”—is gaining ground across the country. Mental health experts have long understood the benefits for kids to have a relationship with both parents and state law is beginning to reflect that. Instead of such terms as “visitation” or “custody” schedules, for example, they are called “parenting plans,” “parenting time,” or “parenting rights and responsibilities” in Arizona, California, Colorado, Connecticut, Florida, Georgia, Maine, Minnesota, Montana, Nebraska, New Mexico, Oregon, Texas, Utah, Virginia, Vermont, Washington, and West Virginia.

Some states have replaced such possessive labels as “custodial,” “non-custodial” or “primary residential” parent, and “sole custody,” with “mother” or “father.” The parenting plan might be as simple as “Monday, Tuesday, and Wednesday, the child is with his mother, and Thursday, Friday, and every other weekend, the child is with his father” or whatever the arrangement may be.  According to divorce attorney Jaqueline Valderspino, “In Florida we have already seen less litigation because if one parent realizes that the other cannot have that label, they’re more likely to concentrate on the child’s best interests.”

Joint Custody Statutes

Joint custody, enacted first in California in 1979, was created to make custody less adversarial and to acknowledge that both parents should be involved with their child. The law is supposed to be gender neutral, with each case decided on its merits. That said, states that have a presumption or preference for joint or shared custody (essentially, that the court should grant joint custody unless there is evidence to prove otherwise), may be more receptive to working mothers than those that don’t. So far, 47 states and the District of Columbia have statutes that specifically authorize joint or shared custody.

Of those, 11 and the District of Columbia have a general presumption in favor of joint custody, meaning it’s what the courts are supposed to do unless there’s evidence otherwise. Those are: Florida, Idaho, Iowa, Kansas, Louisiana, Minnesota, Missouri, New Hampshire, New Mexico, Texas, and Wisconsin. Sixteen more  states have a presumption if both parents agree: Alabama, California, Connecticut, Georgia, Maine, Massachusetts, Michigan, Mississippi, Nebraska, Nevada, New Jersey, Pennsylvania, Tennessee, Vermont, Washington, West Virginia, declare a preference or presumption of joint custody. Oregon and Vermont require the consent of both parents before joint custody can be ordered. In the remaining states, joint custody is an option, as is sole custody, with no preference for or against it.