Can non-custodial parents delegate their parenting time to third-parties?

An issue that commonly arises in interpreting custody orders is whether the non-custodial parent is allowed to delegate his or her (in this culture, mostly his) visitation to third-parties during his custodial periods when the custody order is otherwise silent on the issue. South Carolina case law remains silent on this dispute. However, while acknowledging that many of my peer disagree with me, logically I think the answer has to be yes.

The reason this is even a disputed issue is imprecise thinking about what it means to have “physical custody” of a child. We tend to think of “physical custody” as synonymous with physical possession. Thus, many of my peer believe that, absent explicit authorization, one cannot delegate visitation time to a third-party because one’s right to “physical custody” is solely the right to physically possess the child.

However physical custody is not synonymous with physical possession. As I’ve noted before, physical custody is really the right to control the child’s time. We can see this most logically when we consider a child who attends school. The custodial parent has not lost physical custody of that child merely because that child is in school. Rather, having physical custody gives that parent the right (subject to state laws on truancy and any limitations in the custody order) to determine whether the child goes to school that day. If the child is ill, it is the parent who has physical custody of the child that day who determines whether the child goes to school. A parent with physical custody of the child for a particular day may decide whether that child misses school for vacation or family events.

A parent with physical custody of the child for a particular day may also decide whether to allow that child to engage in extracurricular activities, attend a sleepover, or visit friends or family. Allowing the child to spend time away from the parent who has physical custody does not cause that parent to lose physical custody. “Physical custody” is not physical possession but a right to control that child’s time.

And, since physical custody is the right to control that child’s time, a non-custodial parent who has custodial/visitation periods pursuant to a court order has the right to control that child’s time during his custodial/visitation periods. There is no logical reason this right doesn’t include the right (subject to any limitations the court order may impose) to have third-parties watch the child during that parent’s time.

I’ve yet to encounter a custodial parent who believes she has lost physical custody of her child because that child is in school, attending extracurricular events, with her family, or at a friend’s home. The logical question to ask a primary custodial who contends the other parent does not have a right to have third-parties exercise physical possession of a child during the other parent’s custodial periods is whether she loses “custody” when the child is with third-parties during her custodial periods. I cannot imaging any custodial parent answering that question “yes.”

The right of non-custodial parents to delegate their parenting time during their custodial periods is only a disputed legal issue because no South Carolina attorney sees fit to appeal an adverse ruling.

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