To Label or Not to Label – The Age Old Question in Custody Cases

A Brief Discussion of Joint or Sole Physical Custody

It is an unusual consultation with a dad facing divorce when the client fails to say he wants "joint custody". Of course if one were to ask 10 dads the definition of "joint custody" you would get 10 different answers. So this begs the question, what is "joint physical custody" and/or do I want it? Typically speaking my answer is generally the same to most dads – use it, give it or take it. Use it to obtain a favorable settlement, give it when you bargain for something and take it when you can get it.


What does this all mean? Simply put, in most instances the term "joint physical custody" does not confer upon dads any more rights, responsibilities or obligations with their children in a custody plan than being the non-residential parent with "visitation rights". However, of importance is the developing law in a minority of states that does confer one very important advantage in custody. That being, some courts have held that by having "joint physical custody" future modifications of custody/visitation are governed by a higher standard, being a substantial and continuing change in circumstances, rather than the much lower burden of proving the best interests of the children. This higher standard tends to make it much more difficult in the event mom seeks to change the custody schedule by asking the court to reduce dad’s time in a modification of the divorce judgment. In addition, some states hold that "joint physical custody" is an important consideration when one of the parents seeks to relocate with the child and tends to make any proposed relocation tenuous absent a significant benefit to the children.

Having said that, experience shows that moms are determined above all things to be designated the residential parent and being awarded "sole physical custody" disregarding the actual time dad is awarded with the children. Thus, positioning the client comes into play. Typically, when the client is not seeking to be the primary/sole custodial parent, asking for joint physical/legal custody in initial pleading/demand is crucial. Parties to a divorce have no incentive to settle unless they are placed in fear of losing if the case were tried. Thus, the goal here is to place mom in the position of fearing she will "lose something" at trial if she does not settle and therefore play on that which mom desires most. Usually this is the label of sole custodial parent designation. In those states where there is no advantage to a joint designation, focus on time more than labels. For example, I have settled cases where mom is the sole physical custodial parent, the parties share joint legal custody and dad has week to week (equal time) custody. If one were to only focus on the time, a lay person would call this "joint custody" right?

True, but the only way this was obtained in that particular case was to use it, give it and take it. Mom in that matter was fearful of losing her "status" as primary/sole custodial parent and less concerned about the time dad spent with the children. Thus I played the weakness as a strength to negotiate that which mattered most, time with the children and gave mom her label she so dearly needed. This is not to say all dads should sacrifice the "label" if it is offered up along with an acceptable custody plan, but to be aware that divorce affects moms and dads differently. Moms tend to have an overwhelming need to retain being "the primary parent". This opens the door for dads to focus on maximizing their role in their children’s lives if they aren’t seeking sole physical custody. Too often dads fight the losing battle of demanding the "label" of joint custody AND "equal time" to no avail, only to leave the matter in the hands of a judge, fighting both mom and perhaps stereotypes and pre-determined beliefs by the court as to what custodial schedule is or is not ever appropriate, regardless of circumstances favorable to the children. Thereby, creating what I often refer to as a "loss of chance" to obtain maximized time with children, ignoring labels which provide no benefit other than personal comfort.

As a result, a thorough review of the relevant law in your particular jurisdiction is critical at the onset. Seize on weaknesses in the opposing party to obtain favorable results, and where possible, use it, give it or take it.

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