Clients or potential clients frequently seek explanation of the the nomenclature that surrounds custody orders: “shared” “sole” “joint” “legal” “physical” “primary.” These terms are ill-defined or undefined within South Carolina law and I cannot give clients clear answers to their questions.
When people are fighting over “child 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). I have previously lectured and published on the need to define “joint legal custody” for agreements or orders that create a joint legal custody situation: Joint Legal Custody: What Is It? Why Have It?
Unless defined, it is unclear whether terms such as “shared custody,” “sole custody,” “joint custody,” “legal custody” or “physical custody” add anything meaningful to court orders. 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. These ill-defined terms, 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.
One can easily draft an order in which the terms custody, joint, legal, shared, physical and sole are never used by simply describing the time each parent will spend with the child and how decisions will be made regarding the child. If one is going to create a custody agreement that employs terms such as “shared custody,” “sole custody,” “joint custody,” “legal custody” or “physical custody” it is vital to clearly define the terms being used and what the parties mean by these terms.
