By Alan Freed
It’s not unusual for a divorce client to come into my office for the first time insisting, “I want full custody,” or “I want 50/50 custody.” Sometimes the demand is for “joint custody.” But what do these terms mean?
First, it’s important to understand that a parent should try to develop a plan that takes care of the children’s needs by allowing them to have the best possible relationship with both parents. That may mean a relatively equal sharing of the children’s time with each parent or it may mean that the children spend most of their time with one parent and only a few days with the other. Each situation calls for a different analysis and a plan tailored to a particular family’s needs.
Still, when all is said and done, each parenting plan will have certain labels placed upon it, and these labels are often misunderstood and frequently misused. Here’s what you need to know:
In Missouri, there are two types of child custody: legal custody and physical custody. Legal custody refers to how major decisions for the children are made. These are not the day-to-day decisions that constitute most of what parents do, such as bedtimes or permission to sleep over at a friend’s house. Instead these are decisions about where the children will go to school, which doctor will treat them, and what sports and activities they will participate in, to name a few. Legal custody is either sole, which means that one parent has the final decision-making authority, or joint, which means that both parents have to agree. The courts tend to favor joint legal custody unless the court determines that the parties do not have a commonality of beliefs regarding the major issues in their children’s lives.
Physical custody refers to the schedule for the children. You might think of it as a way of knowing which parent is “on duty” and which parent is “off duty” at any particular time. We see many different schedules ordered by judges or agreed upon by divorcing parents. The details of the schedule depend upon multiple factors, such as the children’s ages, the working schedules of the parents, the distance between the parents’ homes, and the level of involvement that each parent desires.
Physical custody is also described using the terms “sole” and “joint.” However, these terms have substantially less meaning in the area of physical custody than they do in the area of legal custody. The law says that when two parents each have “significant” periods of time with the children, the resulting schedule is to be termed “joint physical custody.” The Court of Appeals (Missouri’s second highest court) recently determined that a schedule where the father had the children one evening per week, alternating weekends, and three weeks in the summer should be called “joint” and not “sole.”
Does it make a difference what you call the parenting schedule? No, not really. Neither parent has any greater rights than the other, regardless of what you call the schedule. Both parents have the same restrictions on moving the children, i.e., you can’t move them without the other parent’s, or the court’s, permission.
So, the best approach is to come up with a schedule that works and not to worry about what it’s called.
An experienced family law attorney can help you come up with a plan that will keep your children well cared for and happy.
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