Physical Custody
Physical custody means having care and control of children on a daily basis. It involves all the daily short-term decisions, like homework, meals, and bedtimes, rather than the long-term decisions involved in legal custody. Physical custody is residential custody. It refers to where the child lives most of the time.
Three Types of Physical Custody
Physical custody may be shared, sole, or split.
Shared Physical Custody
Shared physical custody means that both parents spend substantial time with the children. Both parents start out having this right. Even if the parents have separated and the children are living with one of them, under the law both parents have shared physical custody until and unless one of them obtains a court order that changes it to sole physical custody.
A simple way to share physical custody is to have the child alternate weeks between the mother’s home and the father’s home. She might spend a week at each place. This arrangement minimizes the transfers. The change can take place on Fridays, Mondays, the weekend, or any other agreed-upon time.
Another way to divide time in shared physical custody is that the child spends schooldays with one parent and weekends with the other. The weekend parent also has the child for holidays and summer vacation. This disadvantage of this arrangement, however, is that one parent has the fun time and the other has the homework time.
Sometimes, the children stay in the family home, and it is the parents who move in and out. This is known as a “nesting arrangement.” When there are enough resources to do this, the advantage is that the children keep continuity and routine instead of shuttling back and forth between homes. And all their clothes, toys, and pets stay at one place.
There are as many ways to arrange shared time spent with the children as you can think of. One parent can have the children four days a week and the other for three days a week. Then, they switch on the following week. These are just some of the creative ways parents have maximized the children’s time with each parent.
Sole Physical Custody
Sole physical custody means the children live mostly with one parent. The person is called the custodial parent. The other is called the noncustodial parent. The noncustodial parent has visitation with the children, which will be discussed in the next chapter.
Split Physical Custody
Split physical custody refers to a situation where the homes of the siblings are split between parents; for example, one child lives in the mother’s household and the other child lives in the father’s. Custody is divided. Courts do not favor this type of arrangement, and try to keep brothers and sisters together whenever possible.
Note Courts do not like split physical custody. They like to keep siblings together.
The court on its own determination may order a “custody evaluation” in a contested custody case or either party may ask for one. The evaluator is an independent agent of the court. The parties may also hire their own private custody evaluators.
The evaluator will visit the homes of each parent while the children are there and do interviews the parents and children. He may also interview with neighbors, relatives, teachers, coaches, and therapists who have seen the lives of the children. He then makes a report to the court and recommends custody arrangements.
Typically, he is a trained mental health professional like a social worker. The evaluator will make a report to the court on each parent’s parenting skills and other observations. He will make a recommendation about physical custody and sharing time between parents. The judge does not have to follow the evaluator’s recommendations. But in most cases, the judge will give great weight to those recommendations.
Case Study: Custody Evaluation
“Belval!” exclaims Jeff as he answers the phone in his law office on the second ring. He is answering his own phone because he hates trying to get through voicemail and the receptionists at other law offices. He tries to put as much energy and enthusiasm into his voice as he can after a week-long trial.
“It’s Jane Key,” says the voice on the other end of the phone. The Keys were fighting a fierce custody battle over their two minor children and Jeff was representing Mrs. Key. “The evaluator called and scheduled an appointment at my house for next Tuesday. What should I do?”
“First thing’s first,” Jeff tells her. “The evaluator will report on the condition of your house and the sleeping arrangements for the children. Make sure the house is clean, orderly, and safe.”
“What do I tell the kids?” asks Jane.
“Don’t tell them what to say,” Jeff answers. “Evaluators are keen to pick up on coaching, so don’t do it. Just tell them that someone is coming to talk to them, and it’s OK to answer questions truthfully.”
“Fine,” says Jane. “And what do I say to the evaluator when I’m interviewed?”
“Keep a big neon sign flashing in the back of your head.” says Jeff. “The sign says, ‘It’s All About the Children.’ That will help you stay on track. Answer all the questions with that theme in mind. Instead of saying something negative about your spouse, turn the answer into something positive about yourself. Wrong: ‘He lets the children do whatever they want. He lets them watch way too much TV and stay up past their bedtime.’ Right: ‘I feel that the children do better with the structure, routine, and discipline that I provide.’”
“Got it.” Jane says. “Anything else I should remember?”
“No distractions,” says Jeff. “Turn off the TV and video games. If you are a smoker, it’s time to quit.”
Tip Focus on the children and avoid distractions during the custody evaluation interview.
“Best Interest Attorney”
The court can appoint a “best interest attorney” for the children if one of the parties requests it. The best interest attorney will be the children’s lawyer and represent them in court. This lawyer will talk to the children and the parents and inform the court what the children want with regard to custody and what the attorney thinks is best for them. The best interest attorney may also be called upon to decide whether or not to allow a therapist to testify in court for the children.
The custody evaluator and the best interest attorney can be of great help to you. Or they can work against you. So if you have the choice of making them friends or enemies, it is better to make them friends. Working against them is an uphill battle.
Tip It’s better to be friends than enemies with the custody evaluator and best interest attorney.
Custody Modification
Otis Sloan divorced April Bently 12 years ago. They had two daughters: Cathy, 12, and Joan, 14. They had joint legal custody and the mother had primary physical custody by agreement. Otis had visitation every other weekend.
Otis remarried. He was a fireman. When he received a promotion, his work hours changed from five days a week to three-and-a-half days a week.
Otis asked his former wife if he could change the custody arrangement so that he could spend equal time with the children. She responded by filing a petition with the court asking it to give her sole legal custody and reduce his time with the children.
The court appointed a best interest attorney, who determined that the daughters loved both parents and wanted to spend as much time with each as possible. On the day of trial, attorneys for both parents met with the best interest attorney and worked out a new custody arrangement that gave the father more, but not equal, time.
The court always maintains jurisdiction over modifying child custody. But one parent has to ask it to do so and show that a change in circumstances has taken place since the last agreement or order. A change in circumstances can be falling grades, emotional problems, or a relocation. It cannot be something that could have been anticipated like, “The children are older now.”
Tip The court can always modify custody if circumstances change.
Relocation Cases
When Paul Kettering, an electrical engineer, and Angela Silvers, an army medical technician, divorced, the judge gave custody of their five-year-old son, Kevin, to Angela. Paul loved Kevin very much, and he continued to be a very involved father.
Paul was unhappy when Angela started seeing a new man, Steven, but he was shocked when she told him she had applied for military reassignment to Georgia. Unable to talk her out of it, he filed a petition with the court to modify custody.
He asked the court for a custody evaluation, and he hired his own private custody evaluator as well. Both recommended that custody be changed to Paul.
At the court-ordered mediation, the parties almost reached an agreement that would allow Angela to move to Georgia with Kevin in exchange for his spending more time with Paul in the summer. However, Angela would not agree that custody could be changed to Paul if she were assigned overseas. Mediation failed and the parties tried their case. Judge Ogens denied Paul’s petition to change custody.
Another judge might have ruled differently. Relocation will get you into court because it is a change of circumstances. A relocation case is basically the same as a custody case. The same standard applies—namely, what is in the best interests of the children. You can file before a threatened move or after the move and ask that the children be returned. Some states will permit relocation of the children, others will not. Some decide case by case.
If you are trying to stop a move, you will want to show that the children are attached to their home, school, neighborhood, friends, and family. Their doctors and dentists are all there. So are their teachers and coaches. You can also compare the two locations to show that educational, social, economic, and cultural opportunities are better where the children are now.
If you are the one that wants to move, you need to show that you are not moving in order to make visitation more difficult for the other parent. It is best to have an explanation for the move such as a higher-paying job. You will also want to show that the range of opportunities for the children are better at the new location.
Tip For relocation cases, research the differences between the two locations.
Third-Party Custody
Can third parties (nonparents) sometimes gain custody of a child? Let’s take a look.
Sandy Patterson is having a muffin and a coffee in the diner next to the courthouse where most lawyers start their day when he spots Earl Wymer, the best divorce lawyer in town.
“Earl,” calls Sandy. “I’ll buy you a cup of coffee if I can have a moment of your time.”
“Deal,” says Earl as he sat down at Sandy’s table.
“My client was the dad’s girlfriend,” says Sandy. “Mom died and Dad left their one-year-old with Girlfriend for the last five years. They broke up, and Dad is now marrying another woman. With me so far?”
“Yep,” says Earl. “It sounds complicated.”
“It is. That’s why I’m buying the coffee.”
“OK. So what’s the problem?”
“Dad wants to pick up the kid. Does my client have a chance of keeping the child?” asks Sandy.
“The general rule is that biological parents are favored over third parties in custody disputes. That includes grandparents, stepparents, and former girlfriends,” Earl tells him.
“In law school, I learned that general rules were on the left side of the law library, and exceptions were on the right side.” says Sandy. “I have a feeling you’re about to tell me the exception.”
“That’s right,” agrees Earl. “There is an exception for unfit parents. And the Dad in your case might be an unfit parent if he abandoned the child.”
“Well, I guess you’ve earned your pay. Here’s the waitress with the coffee just in time.”
Tip Biological parents win custody disputes against third parties unless the parents are unfit.
Practical Considerations
People often get hung up on the word custody, which has strong emotional connotations. But it is possible that a legal document is titled a “joint custody agreement” and then, in the body of the document, one party is given all the decision-making authority.
It is also possible that although one sentence of an agreement says that the parties shall have joint legal custody, another sentence will give tie-breaking authority to one parent or the other.
Custody is a convenient label to use to explain the concepts of care and control of children. But you should look beyond the label to the real essence of what is being described. That means you should focus on how parenting decisions will be made and what quality time you will be spending with your children.
Remember, in the legal world, joint legal custody means joint decision making regarding the children. But in the real world, the party with primary physical custody usually makes all the decisions. If the custodial parent selects a pediatrician without consulting the other parent as they should, is the other parent really going to hire a lawyer and go to court over it? Not likely.
Note Having primary physical custody is almost as good as having sole legal custody for all practical purposes.
Summary
In the last chapter, we discussed legal custody of children and how long-term parenting decisions are made. In this chapter, we explored physical custody, day-to-day decisions, and where the children live. In the next chapter, we will talk about various schedules for sharing time between parents.