One of the biggest fears that parents have after a divorce is what is going to happen to their children. Child custody is, and will always be, the toughest part of my job. I can do a cost-benefit analysis with clients on issues such as child support or property division. However, I simply can’t do the same with custody. You can’t put a price tag on your kids.
In addition to being the toughest part of your divorce case, custody cases are usually the most expensive in terms of legal fees. Child custody trials are very labor-intensive for the attorney. We spend hours preparing our questions, gathering our exhibits and prepping our witnesses. That takes a lot of time and, as a result, a lot of our client’s (a/k/a your) money.
Why you should consider a child custody agreement
As such, I always encourage my clients to try to come to an agreement on custody where possible. While I understand that sometimes a trial is inevitable, people underestimate the cost and stress that results from litigating child custody issues. Also, some people are so wrapped up in their own position that they can’t see how a judge would not agree with them. This can lead to tremendous anger if the decision does not go their way.
The best thing about custody agreements is that they remove the fear of the unknown of a judge’s ruling. A judge can do anything within the bounds of the law. As such, both you and/or your former partner could walk away unhappy with the result.
Not only will agreeing save you $$$ on legal fees, it is also likely what is best for you and your children. If you go to trial, you are asking a third party that has never met you before and may never meet your children, to make a decision about where they sleep and go to school. Wouldn’t those determinations be best left to you and their other parent? Who knows your children best, you or a judge who met them for 15 minutes?
Understanding child custody terms
I could go on and on about why the judicial system is not the place for a child custody decision, but I’ve saved that for another post. Oh, and this one too. However, before you can even get to a custody agreement or a custody trial, you must first understand the child custody terms that the court and your lawyer are using.
I find that people often use these terms incorrectly. This mistake can lead to confusion. It also may make it difficult to settle the case because the parties involved (the court included) are not speaking the same language.
So, in this post I’ll talk about:
- The difference between legal custody and physical custody.
- What are legal custody decisions?
- What are types of physical custody?
- Is custody different than visitation?
What is the difference between Legal Custody v. Physical Custody?
Legal custody and physical custody are not the same. Did you think that they were? Let me explain the difference for you.
When you have legal custody of your children, you have the right to make decisions regarding their health, safety, and welfare. Physical custody is who actually has your children in their care at any given moment. In most cases, parents will equally share legal custody even if they do not share physical custody. This is because most courts believe that both parents should have an equal right to decide what happens to their children.
What is legal custody?
I often say to clients, “even ax murderers get shared legal custody.” While my joke may not win me an Emmy, it’s pretty accurate. In my experience, the courts are very reluctant to take away a parent’s legal custody rights unless they have made decisions that have hurt their child.
One example would be going against medical advice and denying the child a medication, resulting in illness or injury. Another less extreme example is not completing paperwork to get the child social or educational services that they desperately need.
Even in these situations, I have often seen judges keep shared legal custody for all decisions other than the one where the parent made the error in judgment. For example, I have seen orders where one parent has been granted sole legal custody to medical issues only, but the parties still share legal custody for all other areas.
I hear from a lot of clients that they want to have sole legal custody because the other parent “never comes to the appointments anyways.” I get it. That’s annoying. And common. But . . . .
This is not enough to get sole legal custody. Generally, a judge will not take away a party’s right to legal custody because of inaction. Even if the other parent doesn’t attend every doctor’s visit or back to school night, they will still be given the right to access the information about their child and make decisions accordingly.
What is physical custody?
Physical custody is who physically has the child for defined periods of time. In other words, which parent is caring for the child when he/she is not at school, camp, or daycare?
Generally, physical custody is allocated in blocks of time. Those blocks of time could be consecutive days or, a defined set of hours on certain days. How often a parent has physical custody of a child determines the type of physical custody that they have.
What are Legal Custody Decisions?
Legal custody decisions can be broken down into three main categories: School, Medical and Other. Here are some examples of legal custody decisions:
Examples of school related legal custody decisions.
Choice of school. This includes deciding whether the children are home-schooled, attend private school, or attend a religious school.
Other school decisions. The right to attend parent-teacher conferences, back-to-school nights, provide input and sign the paperwork required for IEP/ 504 meetings, and participate in conferences regarding disciplinary issues.
Extra-curricular activities. Decisions regarding the children’s participation in sports, camps, and other extra-curriculars.
Examples of medical related legal custody decisions.
Medical decisions. This includes decisions regarding course of treatment for an illness, vaccinations, getting braces, or whether to put the child on ADD/ADHD medication.
Mental health decisions. Consent for a child to see a therapist or other mental health professional.
Other types of legal custody decisions
Passport. Both parents must consent to obtain a passport for their child if they share legal custody. If you are in the United States, be sure to check the State Department site for instructions on how to get a passport for yourself and your children. The site also provides all the forms needed.
Travel. Some airlines also require that the traveling parent get a written statement from the non-traveling parent acknowledging and consenting to the child’s trip. I believe that the airlines are concerned about being involved in parental kidnapping situations, particularly when the child and parent are traveling internationally. Our Family Wizard offers some great templates for travel consent forms.
Religion. Whether the child will be baptized or participate in other religious activities. This area can be tricky as courts are generally reluctant to get involved in situations restricting one’s freedom of religion. I have only seen this come up for extreme religious behavior and/or determining whether the child should attend a religious school when the other parent disagrees on the basis of religion and not cost.
What are Types of Physical Custody?
Do you know that there are four types of physical custody? Don’t worry I’ll explain. Those types are:
- sole physical custody,
- primary physical custody,
- partial physical custody, and
- shared physical custody.
When I determine the type of custody a party has, I look at how many nights that the children sleep at their house out of a 14 day (two week) cycle. A few hours for a dinner visit is a period of physical custody. However, it generally does not count for defining the type of custody that a parent has.
Let me explain each type of physical custody separately:
- Sole physical custody: A parent has sole physical custody if they have all of the overnights and the other parent has no periods of physical custody.
- Primary physical custody: A parent has primary physical custody if they have 8 or more overnights out of 14.
- Partial physical custody: A parent has partial physical custody if they have 6 or less overnights out of 14.
- Shared physical custody: The parties have shared physical custody if they each have 7 overnights out of 14. Sometimes jurisdictions or parties will also call this joint custody.
Is Physical Custody Different than Visitation?
Some jurisdictions use the term custody visitation interchangeably with physical custody. However, in other jurisdictions, the term visitation is generally only used when the parent’s contact with the child is supervised. Supervised visitation is when a third party must be present with the parent and the child while they are together. Generally, supervised visitation is for a block of time during a day and does not include an overnight.
Often, the third party supervisor is a relative or close friend whom the other parent trusts to make sure the child is kept safe. I prefer to use a friend or family member as it is less intimidating to the child and is more cost-effective (i.e. free). However, I recognize that finding someone who is qualified and available for large blocks of time may be difficult.
As such, there are companies that will provide supervised custody services for a fee. Supervised Visitation Directory provides a comprehensive list of such providers for each state. These companies often offer in-home services as well as an off-site location for use. While I recognize that such a set up may not be ideal for spending time with your child, it is better than having no contact with them.
Do you understand the child custody terms now?
The first step to any custody case is understanding what the child custody terms mean, particularly the differences between legal custody and physical custody. Once you are familiar with the vocabulary, you will be able to explain what you want. This will allow you to work with your former partner and/or your attorney in determining a custody arrangement that you believe is in the bests interest of your children.
Have a custody question? Does your state use different language in custody matters? Leave me a comment below and let’s discuss!
Are you new to the divorce process?
Did you recently separate from your spouse? Just getting started in the divorce process? Here is what you should read next:
- 6 tricks to keep your legal fees down;
- Hacks for your initial divorce consult;
- 7 tips for choosing the right divorce lawyer;
- Choosing your divorce team professionals; and
- Divorce Vocabulary 101.
Also, have you signed up for my FREE newsletter yet? It will give you access to my weekly newsletter plus additional bonus content just for my subscribers. As a thank you, I’ll send you my Essential Just Separated from Your Spouse” Checklist. It will give you a step-by-step guide of what to do next.