The emotional stress of dealing with child custody is exacerbated by its terminology. To many people, the word “custody” brings to mind property ownership or jail. Others think of classic win/lose custody battles they may have seen in movies. To make matters worse, the parent without custody is given “visitation.” This gives the impression that the noncustodial parent is not fully involved with or responsible for the child. While these are the terms used in the laws of most states, if you create an agreement with your spouse regarding the care of your children you can use whatever terms you like.
Child custody has two components. The first, physical custody, deals with where the children will live. The second, legal custody, addresses who will make the major decisions affecting the children.
There are several options for allocating physical and legal custody. People who wind up in court over custody make it clear that they don’t get along very well. Judges tend to assume that these couples will have trouble working together to the degree necessary to share custody so they have traditionally decided to give one parent sole custody. That parent has both physical and legal custody of the children. While the children may spend a majority of their time with the custodial parent, it is extremely rare that the noncustodial parent does not have at least the right to visitation. As we’ll see later, even visitation schedules that at first seem meager can end up representing 20 to 40 percent of the time a parent might spend with their child in an intact family.
While a parenting arrangement usually specifies a single primary residence for the children (physical custody), decision-making may be shared in an arrangement called joint legal custody. The decisions affected by this type of custody include where the children will go to school, how and by whom their medical care will be handled, and what church they will attend. The conventional wisdom is that a parent who does not have physical custody but is included in decision-making will stay more involved with their children. The involvement of noncustodial parents is a key goal of the state because it enhances the child’s welfare.
Another option is the sharing of decision-making and physical custody in an arrangement called joint physical custody. In this arrangement the children have two primary addresses and switch between them in intervals as short as every few days or as long as every other year. One of the more confusing aspects of custody terminology is that the amount of time a parent has with their children in something termed a joint physical custody arrangement could actually be less than in a sole custody arrangement. None of the options define the percentage of time spent with each parent. This is a very important point because couples often get unnecessarily caught up in fights about terminology when it comes to custody.
Joint physical custody is increasingly used in cases nationwide. The rise in dual income households and the increasing involvement of fathers in raising their kids are contributing to the growth of this arrangement. In dual income households where both parents have demanding work schedules, a sole custody arrangement requiring one spouse to be responsible for the bulk of the parenting time can diminish the quality of the care that parent can provide. Joint custody balances the load.
Many states, including Florida and Texas, have laws that specify that joint physical and legal custody is preferred or to be presumed. An additional group of
states indicate a similar preference or presumption if the parents agree on joint custody, thus reducing the chances that a judge’s preference for sole custody would override the parents’ wishes. A judge could still order sole custody but might be required to document the reasons for doing so. The presence of domestic violence, drug addiction, or similarly threatening situations will almost certainly result in a judge deviating from a state’s preference for joint custody.
The problems with the terminology of child custody have been recognized by most experts. Legislatures have started to use new terminology that you may encounter. Primary custody is essentially a synonym for sole custody but better reflects that sole custody does not eliminate the involvement on the other parent. Parenting time is replacing visitation and reduces the stigma associated with labeling a parent as simply a visitor. Shared parenting refers to a sole custody or joint custody arrangement in which the child spends at least one third of the time with each parent. Legal custody is being replaced with the clearer phrase decision-making responsibility. Physical custody is becoming residential time.
The final term we will introduce is parenting plan. This is a written agreement that specifies how you will handle decision making responsibility, residential arrangements and parenting time. Some plans address the financial aspects of raising the children (covered in this article on Child Support). The plan should address how future disagreements will be resolved, whether there will be periodic reviews of the plan, and how it will be modified. Typically, court approval of the plan is required.
