Judicial treatment of applications for joint physical custody in Belgium: criteria considered and underlying family normativities

Abstract Joint physical custody (JPC) of children after parental separation is increasingly prevalent in many countries. The literature describes a series of criteria that are—or should be—considered by judges who must rule on applications for JPC. However, little is known about how family courts evaluate these criteria, or about the normative representations that shape their evaluations. Based on the perspectives of lawyers and judges in Belgian family courts—collected in 2018 through an online survey and semi-structured interviews—this article examines the most commonly used criteria, how these criteria are evaluated, and the underlying normative representations of the family. Three criteria are widely used both by lawyers in their advisory role and by judges: the child’s age, the geographical distance between parents, and the applicant’s temporal availability. Nevertheless, judges make use of a broader range of criteria, which they evaluate on a case-by-case basis. This evaluation is based on a normative representation that continues to prioritize the nuclear family, resulting in tensions between gender equality and the precedence of the mother when young children are concerned.