Custody Terminology and Visitation

Joint vs Sole Custody

So we’re going to move on now and talk about some of this terminology. This is a very difficult thing to talk about when it comes to child custody, because everybody has this idea in their head of what joint custody means, or what sole custody means. You hear people talk about their own stories and say, “Well I got sole custody.” There’s unlimited reasons why you may have these preconceived notions about what these terms actually mean.

Let me just start by saying that these things will mean something different in a court order than they will in a separation agreement. In the court order, these terms are going to mean whatever the Judge defines them to mean. The Judge will say, “Parents have joint custody.” Joint custody means that parents have equal decision making power over the child. They each can make the big decisions about medicine and schooling and that sort of thing.

The Judge can also define that as sole custody. The Judge can say, “No, this one parent has the ability to make those big decisions.” And then outside of that, the custodial schedule may actually reflect a 50/50 physical custody schedule. But Judge is just saying, “This one parent has the final decision making power for the big decisions. I’m giving that person sole custody.”

In a separation agreement, as we’ve hinted at, you have the ability to define these terms however you want to. You can use the term “joint custody,” you can use can use the term “sole custody.” As long as you define it, it’s fine. You can use the terms “joint legal custody” and “joint physical custody.” You can use “sole legal custody,” and “sole physical custody.” It really doesn’t matter, you just need to make sure that you clearly define those terms in your agreement. And your Judge will certainly do so if it’s in an order.

Visitation

People often ask, “What is visitation?” Typically, this refers to time that the non-primary custodial parent has. If it’s an every other weekend custody arrangement, then maybe we refer to the parent as having visitation, as opposed to custodial time.

But again, you can define visitation to mean whatever you want it to be. And at the same time, it doesn’t necessarily have some hard and fast definition. It’s going to be defined as whatever you want it to be defined as. You could have your separation agreement state that an every other weekend schedule is referred to as custodial time, or you can refer to it as visitation. Legally, it makes no difference what you refer to it as.

The takeaway here is, don’t get hung up in terminology. So often people will come flying into our office, waving an agreement saying, “I’m never signing this, I’m never signing this. It says, he has sole custody. I will never agree to that.” And then when you actually look at it, maybe that just refers to him having final decision making power, but you have more physical custody time. At the end of the day, you may be okay with that.

Don’t get hung up in the terminology. Don’t get wrapped up in what you hear other people say. It’s going to be up to you to define those terms. And if it’s not up to you, then it’s up to the judge to define those terms.


Rosen attorneys are available for consultations by both phone and video conference – call 919-787-6668 for more information.Learn More
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