CHILD CUSTODY

+ What is the significance of legal and physical custody?

“Legal custody” signifies who makes the “major” decisions concerning a minor child. These decisions include those concerning health (including mental health), education, and religion. In an intact family, both parents usually make those decisions together, discussing them as they arise. If both parents can communicate effectively during and after the divorce process, the Court will tend to award “joint legal custody,” which means that all the major decisions need to be discussed and made jointly. “Sole legal custody” is the opposite, where only one of the parents is making these decisions. In cases where there is intense bitterness and little communication between the parents, or where decisions are significantly delayed because of substantial disagreements, sole custody is more likely awarded.

“Physical custody” signifies who has custody of the minor child at what times. Many courts have begun to abandon the term “physical custody,” because it appears to indicate that one parent is really the caretaker of the child while the other parent has only “visitation,” and is thus only a visitor in the child’s life. What most often happens in practice is that one parent has physical custody part of the time and the other parent another part of the time— each parent has physical custody of the child at various times. Since this is the case, it makes little sense to say that only one parent has physical custody. Some courts say that one parent has “primary physical custody,” meaning that this parent has custody most of the time; but that terminology is unnecessary, since the parenting plan (who has custody when) tells us how much time the child will have with each parent.

There is also the term, “joint physical custody,” which sounds like each parent has the child with him/her exactly 50% of the time, but that is almost never the case. Rather, “joint physical custody,” denotes that the parents have somewhat equal time and responsibility for the child (which can be a 4 day a week / 3 day a week plan, for example.) It is generally of no significant advantage to have a designation “joint legal custody,” except if one parent wants to move a child out of state.

Who gets custody and when is decided based upon “the best interests of the child.”

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ What is joint custody?

“What does ‘joint custody’ mean?” It seems like a simple question that should have a simple answer. But, as is often the case, things are a bit complicated.

The term ‘joint custody’ came into use in the 1970s when there was a movement in the United States to allow the possibility of separated parents sharing in the legal responsibilities of raising their children. Prior to that time, one, and only one, parent had to be designated the custodial parent and the other parent lost most parental rights and was typically granted “visitation” with the child.

There are two kinds of custody: legal custody and physical custody. ‘Legal custody’ refers to the right and responsibility to make major decisions concerning the raising of a child, including the right to determine the education, religious upbringing, and medical treatment of the child. ‘Physical custody’ refers to the residence of the child. These are separate matters. Parents can share legal custody without sharing physical custody, which sometimes happens when parents are living far apart. And parents can share physical custody without sharing legal custody, an arrangement courts sometimes impose when both parents are fit and loving parents but they have irresolvable differences about medical, educational, or religious decisions concerning the child.

It is important to keep the distinction between legal and physical custody in mind when people talk about the prevalence of “joint custody”. Frequently they are speaking only of legal custody.

There is a movement away from using the term ‘custody’—a term that is often thought of in connection with incarcerated individuals. Instead of using the term ‘legal custody’, increasingly statutes and divorce professionals speak of “decision-making responsibility”. And, instead of referring to ‘physical custody’, the term ‘parenting time’ is often used.

National Parents Organization typically speaks of shared parenting. The term ‘shared parenting’ entails both joint decision-making responsibility (legal custody) and substantial sharing of parenting time (physical custody).

What constitutes “substantial sharing of parenting time” is, obviously, somewhat vague. Researchers often use a cut-off of a minimum of 35% of the time awarded to each parent. This is clearly a somewhat arbitrary line but it does ensure that both parents are involved in the typical day-to-day child-rearing activities that constitute parenting.

Since research indicates that children’s well-being is maximized when they have equal or nearly equal time in the care of each of their fit and loving parents, NPO advocates for equal shared parenting, by which we mean joint decision-making responsibility and equal, or nearly equal, parenting time.

+ When can a child decide with which parent to live?

Again, the states differ, but generally, if a child is of “sufficient age and intelligence” to make an informed decision about where he/she wants to live and can articulate that decision, the child’s decision will be given substantial weight. A bright 11-year-old might have very mature reasons for living with one or the other parent. The desire to live in a home with fewer rules, however, is not an example of an informed, intelligent decision, unless one parent is overbearing in the extreme, as an example. Children, as a rule, do not testify in court, so a child’s preference would come to the court’s attention through a probation officer of the court or a guardian ad litem (investigator appointed by the judge).

- Jerome L. Aaron, Attorney at Law, Massachusetts

+ After our divorce, we now find that the parenting plan we had agreed to needs to be altered, and we both have agreed on a new plan. Do we need to go back to court to have it changed?

As children become older, as parents change their residences, or for other reasons, parents sometimes find that the parenting plan they had agreed to in the divorce or the one ordered by the judge no longer works well. As long as the parents agree on a new schedule, there is no need to return to court to make changes. The court generally does not care, and it only needs to intercede where there is a disagreement. If subsequently to the new agreed schedule, there is again a disagreement, the spouses can only revert to the last court-ordered schedule, and they must then return to the Court to make any changes.

- Jerome L. Aaron, Attorney at Law, Massachusetts