We’ve talked endlessly about the vocabulary of custody over the years. No matter how many times I write or speak on it, though, I find there are people who are still confused, and who still aren’t sure of the differences, especially between legal and physical custody.
Legal custody is simple, and is almost always awarded jointly between the parties. Legal custody refers only to the right to make three types of decisions on behalf of the child: (1) not emergency medical care, (2) religious upbringing, and (3) education.
In many ways, legal custody isn’t THAT big of a deal – or, at least, in many cases it’s not that big of a deal. Not because the issues aren’t important (on the contrary, they are – in fact, I think I’d argue that they’re foundational issues when it comes to raising a child), but because, in a lot of cases, the decisions are made immediately and instinctively. Disputes can arise, especially given a debate between private versus public school, whether or not to vaccinate, or whether to raise a child in a particular religious tradition, but in a lot of cases the parents are of one mind. For most, public school is fine (or if the kids are in private the parents have already agreed to it), the children will be vaccinated, and they raise the baby to follow the same religious tradition in which they themselves were raised. Even if the two parents practice two different religions, it’s often not a problem for one parent to take the child to Church on their parenting time, and the other to take the child to Temple on their parenting time.
Disputes can, and do, arise, but less frequently than disputes over physical custody. In fact, I think physical custody is what most moms are talking about when they tell me they want custody, or that they want sole custody. The words can vary a little bit, but the end statement is similar: most moms want their children to spend most, if not all, of their time with them.
It’s not that moms don’t believe in dads, or that they don’t think that dads are important in their children’s lives. They do. But that also doesn’t change the fact that moms want to keep their children close to them.
But physical custody refers to where the child spends the majority of his or her time, and it’s broken down into three categories: primary physical, shared physical, and split physical.
I’ve written a lot about primary and shared physical custodial arrangements, because they’re the most popular. In fact, I think it’s safe to say that judges really favor shared physical custody these days, even though the new laws say only that the judges have to consider EACH type of custodial arrangement equally. (Which, to my mind, does not equate to having a preference for a particular type of custodial arrangement!)
The point is that custody and visitation has to be determined with the best interests of the child in mind. The best interests of the child is a dynamic concept that is constantly changing along with the children – so what is good for one child might not be good for another, and what is good for one or both or neither of them is something that is changing with time, maturity, and experience.
What is split physical custody?
Split physical custody is a custodial arrangement where the children involved have different custodial situations from each other. One child might live with mom and the other with dad, like in The Parent Trap, but it might also be that one child has 50/50 with mom and dad, and the other is more like 80/20. It’s fact specific, case dependent, and relies specifically on different arrangements being best or most beneficial for each child.
In most cases, it’s probably safe to say that the judge thinks that the best situation is one that keeps the children together. But, for whatever reason, that might not always be the case. It could happen that one child is much older, that one child has a disability or mental illness, or the children are adopted and don’t do well together (just to name a few examples, mind you, not to give an exhaustive list of possibilities), and they have very different needs.
Would a judge order split physical custody?
It’s probably unlikely, but it’s possible! I’ve seen it happen – though very seldom. For the most part, it’s not like split physical custody is some random decision that a judge is going to spit out at the last minute. It wouldn’t be a surprise; it would be a decision that is entered into because the facts warrant it. Not necessarily that you’ll agree that this is the best course of action, but there will have been testimony and evidence and witnesses arguing about what’s best for the children, and whether it wouldn’t be better to separate them for their own best interests.
More often, I see split physical custody (though it’s still rare) in a custody agreement, where the parties have specifically agreed to it.
It’s really uncommon, but it’s a possibility. Obviously, it also makes calculating child support fairly complicated, so if you want to figure out whether a split physical custody scenario would work for you (or whether you’re hoping to fight against a split physical custody arrangement proposed by your child’s father) and/or begin to figure out how that might impact child support, give our office a call at 757-425-5200.