What do we mean by custody?

Posted Friday, August 18th, 2017 by Gregory Forman
Filed under Child Custody, Litigation Strategy, Not South Carolina Specific, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys

Parents come to my office wanting to litigate custody. Often they are not sure what it means but they know they want it. Terms like “sole custody,” “shared custody,” “joint custody,” and “primary custody” get mentioned and folks want to know what these terms mean. I really can’t answer.

One reason I can’t answer is that South Carolina law defining these terms is vague at best, and sometimes non-existent. The other reason I can’t is that the terms are largely meaningless unless defined. If a custody agreement or order defines “joint custody,” than that agreement or order controls–but the definition is what’s important, not the term(s) used.

I’ve seen orders that give parents “joint custody” but give one parent no unsupervised visitation. I’ve seen orders that give one parent “primary custody” but give the other parent a supermajority of time. One parent may have gotten the term (s)he wanted but the other parent got the order (s)he wanted. I counsel parents to stop worrying about terminology and to think about “custody” as encompassing three things: control of a child’s time; decision making for the child and; residence for school.

Control of a child’s time is what folks think of as “physical custody.” However one can often have “physical custody” of a child without actually having physical control of a child. When a child is in school, at a friend’s homes, visiting relatives, or wandering their neighborhoods, parents don’t lose “physical custody.” That’s because at least one person has the right to control that child’s time at any point in the day/month/year. The parent with “physical custody” can decide whether to have a sick child go to school or stay home. The parent with “physical custody” can decide whether or not a child can sleep at a friend’s house.

Physical custody = control of time. Dividing up control of the 168 hours of the week (or the 8,766 hours of the year) is part of “custody.” Dividing up that time so that each parent has optimal time with the children–it’s stupid to give a parent time that they can’t use and the other parent can–is more helpful than defining custody. Making sure one’s client has sufficient time with the child to maintain a relationship, and that the child is protected from a problematic opposing party, is vastly more important than labeling custody.

The ability to make major decisions for the child is what folks think of as “legal custody.” Sometimes, when folks can’t agree on who should have final decision-making authority they agree to have no final decision maker. Experience has demonstrated this to be a disaster: when both parties have veto power over these decisions, they can use such power to control the other parent–almost always to the child’s detriment. Giving an obstinate party veto power never benefits the child.

To avoid such outcomes, some agreements delegate final decision making to a third-party–typically a family law arbitrator. In theory this ameliorates the problem of no final decision maker. However, many important decisions regarding children are time sensitive and the arbitration is not a fast process. I’ve seen a child deprived the opportunity to attend camp, engage in an extracurricular activities, or apply for a charter/magnet school because arbitration could not take place in time. In practice, delegating decision making to an arbitrator gives the obstinate party control, if less control.

Just because having a final decision maker is useful doesn’t mean that one party needs to have final decision making over everything. Often parents have divided areas of responsibility for a child. One parent may oversee school while another oversees religion. One oversees medical and the other oversees extracurricular. Divided legal custody with different final decision-making authority for different issues is perfectly workable.

The final aspect of custody is school residence. In my experience, schools will honor custody agreements that set school residence. If one parent lives in an excellent school district and the other parent lives in a problematic school district, it can benefit the child to have his or her residence be in the superior school district.

Folks can litigate terminology if they wish. I’ve even had a few recent cases in which the opposing parent was so disruptive that I supported my client’s desire to obtain a designation of “sole” custodian. However it’s much more productive to expend effort addressing control of time, control of decision making, and residence for school.

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