Does the term “custody” cause more problems than it solves?

I am frequently asked by clients or potential clients to explain all the nomenclature that surrounds custody orders: “shared,” “sole,” “joint,” “legal,” “physical,” “primary.” In my view these terms are ill-defined or undefined and I find I cannot give clients clear answers to their questions. I further believe this same flaw causes much child custody litigation to be unproductive or counterproductive because people are fighting over terms that have no clear meaning.

When people are fighting over custody they are really fighting over only two things: “time” (that is who gets to spend time when the child and when) and “control” (that is who gets to make what decisions regarding the child and how and which residence will be considered the child’s residence for determining where the child goes to school).

Would child custody litigation be better (in the sense that orders would be clearer; litigated issues more focused and simplified) if we tossed out the current nomenclature and simply discussed “time” and “control” or are there good reasons to have the varied (and I believe ill-defined) nomenclature that is currently used by the courts all over the country?

Do these terms (“shared” “sole” “joint” “legal” “physical”) add anything meaningful to court orders? If you have two identical orders but one has an additional provision “the parties have shared custody” or “mother has sole custody” does that change the meaning of the order? I think provisions in orders are meaningful in only two senses: 1) if someone can be subject to contempt for violation of that provision; 2) if that provision affects subsequent modifications actions. I would submit that these added provisions, in and of themselves, cannot subject someone to contempt for their violation and to the extent that these added provisions affect subsequent modification actions they do so in a way that is so random and judge-dependant that to add them to the order is the equivalent of placing a land mine in the order.

I believe one could easily draft an order in which the terms custody, joint, legal, shared, physical and sole are never used. Instead the judge uses the terms “time” and “control” in the order. S/he decides mother will have this time with the child and father will have that time with the child. S/he adds up the overnights for each parent. If one parent has over 255 overnights that parent receives Guidelines A child support from the other parent. If both parents have at least 110 overnights and the judge believes Guidelines C should be applied, he applies Guidelines C. If both parents have 110 overnights but s/he decides not to apply guidelines C, s/he sets child support outside the guidelines or awards Guidelines A support to the parent with the majority of overnights (or time) with the child.

Then the judge decides control. S/he decides which parent’s residence will be the child’s residence for purposes of school. S/he rules how medical decisions for the child will be made, how educational decisions for the child will be made, how non emergency medical decisions for the child will be made, who will have control over the child’s religious upbringing and how the parent with this control can effect the other parent’s time with the child to effectuate this upbringing (e.g., can the parent with control compel the other parent to take the child to church or religious school during that parent’s time) and how extracurricular activity decisions for the child will be made.

I believe such a order would be better than current orders in two ways. First, the order is not rife with vague, undefined terms that are subject to disputes over meaning and intent. Second, the order avoids words that are fraught with significance to the parties but have no clear meaning.

Early in my career I settled a case with my client (father) having the child approximately 60-70% of the time and having primary decision making authority but to get this agreement, he had to agree that mother had “custody.” So the order gave my client the majority of the time and control of the child but mother had “custody.” I have often wondered if a modification action had ever been filed what weight the court might have given to that fact. I also thought that it was stupid for people to be fighting over terminology that had vague (and perhaps no) meaning.

  • The example is your last paragraph illustrates how lawyers and judges use terms so loosely that although once understood by everyone they become undefined and are used to make a parent believe he or she is getting something better when all they are getting is visitation.

    In the sixteenth judicial circut, Judge Woods, one of my favority judges but a judge with whom I often disagree, refuses to discuss custody, preferring to call it parenting time. When one party is granted custody, we know who gets to make all of the decisions such as school and religion. When we call it parenting time, then we have to define all of the time and control elements that you discuss.

    My problem in responding to your excellent column is that I could discuss it for several days or respond with a couple of hundred pages, but it is difficult to respond in a few paragraphs. I generally oppose changes in the family court because, with the exception of the Department of Social Services child support guidelines, the intended improvements over the last forty years have generally been outweighed by negative unintended consequences.

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