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Jun 19, 2024, 06:14:07 AM

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If you don't understand the different types and what each one means to you, you may be mislead or maneuvered into making a custody settlement you will regret later, often for many years.

The first thing you need to know is that "custody" has two components:

  • "Legal custody" refers to being able to make decisions for the child, such as medical decisions, educational decisions, living arrangements and location, etc.
  • "Physical custody" refers to where the child actually lives, eats, and sleeps.

Together, the components define what kind of actual "custody" is in effect. Common types of custody include the following:

  • "Sole custody", often referred to as 'full custody', is where one parent has both legal and physical custody and the other parent has only visitation. The sole custody parent typically has the child about 90% of the time, makes all decisions concerning the child, and has final say on everything. The other parent might have every other weekend visitation, or none, or some other schedule decided upon by the court. The other parent can make no decisions for the child's upbringing.

  • "Joint legal" custody is where both parents have an equal say in making decisions on education, medical, and other issues for the child. If parents with joint legal custody have a dispute over a major decision, then the court will make the decision. Courts frequently side with the custodial parent (the one who has primary physical custody) making the practice of joint custody meaningless in many cases.

  • "Joint physical" custody can be ordered where one or both of the parents is named 'primary custodian'. (The child's main residence is with the primary custodian). The time can be divided in whatever way the parents or the courts choose, from every other weekend, to 50/50.

  • Combinations of custody can also be ordered together. Typical combinations are: joint legal, but sole physical, joint physical with sole legal, or sole custody all together. The court may also order joint legal with joint physical, but usually won't do this unless both parents are 'in agreement' and can 'cooperate' in raising the child.

Be aware that in most instances, the parent who is designated the "Primary' parent (sometimes termed 'Primary Residential' parent) is, for all intents and purposes, considered to be the sole custodial parent in the eyes of the court. Even though the parents may have joint legal and physical custody with a 50/50 split, if the court has designated one parent as the 'Primary' parent, that is the person whose wishes will normally prevail. Joint custody is often awarded by the court in an effort to placate fathers and get them to settle. If the court has designated the mother as the 'Primary' parent, the father actually has no more say in the child's life than if the mother had been awarded sole custody.

Temporary Custody

"Temporary custody" deserves a section all its own, because the term "temporary" as used in Family Court is highly misleading. One of the hardest-learned lessons in Family Court is that "temporary" really means "permanent". We'll say that again: Temporary custody nearly ALWAYS ends up becoming permanent custody. The same thing is true for child support orders, visitation, holiday schedules, etc. The reason for this is, in part, related to the court's reluctance to alter a standing custody arrangement.

During the separation and litigation phase of a divorce it is common for the court to award or grant one party "temporary custody" of the children until the divorce is finalized. Assume for the moment that at the time of filing for legal separation, the court awards "temporary custody" of the children to your soon-to-be ex-wife. The terms of the standard "temporary" specify that children stay with her and you get to see them every other weekend. So far, so good, right? WRONG!

Keep in mind that six to twelve months (possibly more) will go by while the details of the divorce are worked out and the court date draws near. During this time the children are living primarily with the mother, the children's schedules are (naturally) adjusted to accomodate her plans, her workday, etc, and your concerns and input with regard to the children become secondary at best.

When you finally go to court, your ex-wife's attorney will tell the judge that "the children have been residing with the mother in an established custodial environment for the last year" and that because of this, "permanent custody should be awarded to the mother". Nine times out of ten the judge will do exactly as the attorney requests, because, after all, the children have established a routine living with with the mother and the judge doesn't wish to upset this routine. The judge will often justify his decision by citing the all-important "stability" factor.

You've just been had, because you believed them when they said that the current arrangement was "temporary". It's likely that more fathers have been denied equitable custody (or any custody at all) through this carefully orchestrated technique (some would say 'ruse') than for all other reasons combined.

Finally, don't make the mistake of thinking that by settling out of court you can avoid this turn of events. Should you not agree to your ex's terms, no matter how unreasonable they are, you will be told that your only alternative is to go to court, with aforementioned predictable results.

The lesson here is that you should NEVER agree to ANY "temporary" condition with the expectation that it will be changed later. Where your children are concerned, ALWAYS insist on an equal 50/50 division of Parenting Time until the divorce is finalized.

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