In child custody cases, courts are more and more favoring joint custody over sole custody. With regard to "legal custody," which is the right to be involved in decision making about the child's welfare (in areas such as education, medical care, religious upbringing, and extracurricular activities), joint custody is usually granted, unless some firm reason is presented to the court demonstrating that one parent is unfit to take part in such decision making.
"Physical custody" -- which determines where the child will live, and thus which parent will supervise the child's day-to-day routine -- is still more commonly awarded to a single parent rather than to both jointly. Still, as evidence mounts that children raised in single-parent homes are more prone to have trouble at school, abuse drugs or alcohol, or exhibit other destructive behaviors, courts are more and more trying to involve both parents in their child's upbringing, awarding joint physical custody. This is generally defined as having the child live with one parent a minimum of 30 percent of the time -- and thus with the other a maximum of 70 percent of the time -- though the split is often closer to 50/50. Courts tend to find that it is in a child's best interest to receive substantial parenting from both the mother and the father.
If the court has already awarded joint physical custody and you believe that this decision is not in your child's best interest -- even that your ex-spouse or ex-partner may pose a risk to your child's welfare -- then you may petition the court for sole physical custody. The process differs among different U.S. states, but generally you would need to fill out a standardized petition form and present it to the court. In most cases, it is best to seek legal advice before filling out the form. Notice must be sent to the opposing party as well.
Since you will be attempting to overturn a previous decision of the court, you will need to present evidence to have any chance of success. The court will, again, decide on the matter based on its own assessment of what is in the child's best interest, so keep this criterion firmly in mind when putting together your case. For instance, if your ex has a history of violent or abuse behavior, drug or alcohol abuse, neglect, or some other destructive behavior, you should document specific occurrences and present witnesses as appropriate.
If your ex's harmful or destructive behavior has been longstanding, it's likely that evidence to that effect was already presented during the original custody hearing, and the court may have decided that the behavior was not sufficiently severe to prohibit joint physical custody. You will need to present new evidence. Perhaps your ex's behavior has changed since he or she was awarded joint custody; perhaps you can detect some damaging effects in your child's behavior. Be prepared with evidence, and with witnesses.
Also, if your child is mature, it is possible that the court may wish to hear his or her opinion. You must be certain that obtaining sole custody is worth the stress of going through another hearing, particularly if your child will be asked to testify. Don't petition for sole custody out of vindictiveness, or based on rumors. You must have firm evidence, and the ability to present your case effectively to the court.
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