Custody (Part 1)
Like most material things couples accumulate during their marriage, custody of the children must also be divided during a divorce. By “custody” lawyers actually mean two related but different concepts.
Physical custody pertains to the living arrangement of the children. Either parent may become the sole physical custodian, in which case the other parent will be relegated to the so-called non-custodial visitation schedule and will be able to visit with the child only during specified times. It is also possible, though less common, to share physical custody of the children through a joint custody arrangement. While this split may not be 50/50, the child will live with each parent for a period of time during the year.
Legal custody has to do with the authority to make decisions respecting the major issues in your kids’ lives, most importantly their health and education. There are basically three ways to apportion Legal custody: either parent can have the Sole Legal Custody and will be the only one making these decisions. Alternatively, the parents will have Joint Legal Custody, which theoretically means that they have to agree on joint decisions.
It should be noted that in some states the terminology is different; for example, in Texas instead of physical and legal custodians the law refers to “sole managing conservator,” “joint managing conservators,” and “possessory conservators.” However, the concepts are basically the same from state to state.
Is Joint Custody Good for you?
At the outset, it is important for you to decide whether to pursue joint legal custody with your wife. While the concept of two parents having an equal voice in all child-rearing decisions has some intuitive appeal, in practice it has some serious difficulties because nature of divorce is unfriendly. Any exceptions you may know serve to prove the rule. Often, one party is left feeling betrayed and exploited, while the other party moves on to a better deal. Many divorces involve bitter battles about the division of property and assets. It is unrealistic to expect that either – much less both – parents can put the bitterness and animosity aside to come to a rational consensus regarding what is best for the kids. The bitterness and strife present at the conclusion of a divorce does not evaporate like an ugly spill. More often than not, it corrodes further the relationship as lifestyles change and parties again begin to date. This is the milieu from which is to emerge, theoretically, a cooperative and productive co-parenting arrangement. In practice, joint legal would mean that the parents can agree on schools, extracurricular activities, health care providers, health care, place of worship, other religious matters, etc. As you might expect, many judges and lawyers, hard-bitten by experience, view the concept of joint legal custody skeptically.
Despite its practical limitations, however, joint legal custody does give the non-custodial parent – usually a dad – substantially greater leverage than he would otherwise have. By exercising his veto power, he can put the brakes on unilateral decisions the mom may be inclined to make respecting major issues. Furthermore, if the mom does not cooperate with a joint custody arrangement, the dad always has the threat of action for contempt. Additionally, if the primary physical custodian shows a repeated disregard for the court’s allocation of parenting authority, courts may, and with increasing frequency do, transfer custody.
In summary, a dad should seek joint legal custody if he is not likely to obtain primary physical custody of the child. In the absence of primary physical custody, joint legal custody becomes an important mechanism to prevent the mom from reducing him to providing child support and baby-sitting on weekends.
This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store .