There are many, many factors the judge will consider. I’ll list them.
First and foremost is: distance between the parents. If the parents don’t live close enough to each other to make joint custody work, the court simply won’t award joint custody.
To make joint physical custody feasible the parents obviously must be able to transport the children between their respective residences without the travel being a burden and a hardship on the child.
That means the parents must live close enough to each other to get the child to school when the child is with each parent. It also means that the child gets to spend time with one parent without spending too much time away from the other parent. And that usually means that the parents live within about 30 minutes or less of each other; otherwise, all the time, effort, travel and expense associated with shuttling the child back and forth in the long distance between the parents benefits no one, particularly the child.
So parents who live in different states (and by “living in different states” I’ll assume that means parents that live a long distance away from each other, not just over the state line from each other) could still be awarded joint legal custody of their child, but the odds of being awarded joint physical custody are slim, and for obvious reasons.
If you want to get joint physical custody of your children in Utah, you need to live close to the other parent, so that going between the parents’ respective homes will not be an undue burden on the kids.
Other factors the court considers when determining whether to award joint physical custody. These are the factors the court considers in Utah, where I practice law.
i. the past conduct and demonstrated moral standards of each of the parties;
ii. which parent is most likely to act in the best interest of the child, including allowing the child frequent and continuing contact with the noncustodial parent;
iii. the extent of bonding between the parent and child, meaning the depth, quality, and nature of the relationship between a parent and child;
iv. whether the parent has intentionally exposed the child to pornography or material harmful to a minor, as defined in Utah Code § 76-10-1201; and
v. domestic violence in the home or in the presence of the child;
vi. special physical or mental needs of a parent or child, making joint legal custody unreasonable;
vii. physical distance between the residences of the parents, making joint decision making impractical in certain circumstances;
viii. whether the physical, psychological, and emotional needs and development of the child will benefit from joint legal or physical custody;
ix. the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
x. whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
xi. whether both parents participated in raising the child before the divorce;
xii. the geographical proximity of the homes of the parents;
xiii. the preference of the child if the child is of sufficient age and capacity to reason so as to form an intelligent preference as to joint legal or physical custody;
xiv. the maturity of the parents and their willingness and ability to protect the child from conflict that may arise between the parents;
xv. the past and present ability of the parents to cooperate with each other and make decisions jointly;
xvi. any history of, or potential for, child abuse, spouse abuse, or kidnapping;
xvii. the relative benefit of keeping siblings together;
xviii. previous parenting arrangements where the child has been happy and well adjusted;
xix. factors relating to the prospective custodians’ character and their capacity and willingness to function as parents, including:
- parenting skills;
- co-parenting skills (including, but not limited to, the ability to facilitate the child’s relationship with the other parent, and to appropriately communicate with the other parent);
- moral character; emotional stability;
- duration and depth of desire for custody and parent-time;
- ability to provide personal rather than surrogate care;
- significant impairment of ability to function as a parent through drug abuse, excessive drinking or other causes;
- reasons for having relinquished custody or parent-time in the past; religious compatibility with the child;
- the child’s interaction and relationship with the child’s step-parent(s), extended family members, and/or any other person who may significantly affect the child’s best interest;
- financial responsibility; evidence of abuse of the subject child, another child, or spouse;
xx. any other factors the court finds relevant.
Utah Family Law, LC | divorceutah.com | 801-466-9277