Can joint physical custody help resolve parental issues? : a comparative and analytical study

Abstract

The aim of this paper is to study possible reforms to the Civil Code and other relevant Maltese legislation in relation to care and custody, with particular focus on the codification of joint physical custody. To achieve this, a comparative study was carried out with jurisdictions which have adopted joint physical custody, thus making it the starting point of separation cases unless contraindicated by circumstances such as those involving domestic violence and other abuse, neglect and mental health issues. The selected countries are Australia who has pioneered a decade-long process that has fostered joint physical custody, Belgium, Netherlands and Sweden. The system adopted by the Germany courts, which tends to be more equitable towards the parents, is also analysed. In a joint physical custody setting, no maintenance would be required as each parent is equally financially responsible for the child, thus reducing and possibly eliminating the need for litigation. From the analytical study of local judgements it emerged that the Courts have been reluctant to considered joint physical custody with the major concern being that commuting between two homes could lead to lack of stability for the children and thus not held to be in the child’s best interest. Also it emerged from consensual separation agreements extrapolated from the judgements on divorce, that very few couples choose to regulate themselves in a manner which is different from the norm, being the father being the financial provider and the mother the primary care giver. The conclusion arrived at was that a more holistic approach needs to be taken to custodial arrangements, which includes changes to legislation to be more family friendly and which reflect the demographical changes impacting the traditional family structure.