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If you have minor children by your marriage, then you will need to make agreements with your spouse regarding child custody. There is “legal custody” and “physical custody”. These are two very different concepts. See discussion below.
Legal custody is all about making decisions regarding the health, education, and welfare of the children. There is “joint legal custody” and “sole legal custody”. Joint legal custody means you and your spouse equally share in the rights and responsibilities of making decisions that concern the health, education, and welfare of your children. Examples of these kinds of decisions are decisions about which school or daycare center the children will attend; what kinds of extracurricular activities they will participate in, deciding which doctor and dentist will treat them; what kind of medical or dental treatment they will receive; whether they will receive therapy; etc. If you and your spouse have “joint legal custody”, you are required to discuss, in good faith, these decisions and make joint decisions. If you have “sole legal custody”, then you can make all of these decisions by yourself and you are not obligated to obtain the consent of your spouse before making important decisions about your children’s health, education, and welfare.
You and your spouse will need to agree on whether you will be sharing joint legal custody or if one party is going to have sole legal custody. Most people agree to joint legal custody. However, there are a number of reasons why you may want sole legal custody. If you were the victim of domestic violence during the marriage, you may not want to have discussions after the divorce with your ex-spouse about the children. If, during the marriage, you were the parent that assumed sole responsibility for dealing with the children’s school, doctors, dentist, and extracurricular activities, then you and your spouse may agree that you should continue in this role. If you anticipate that your spouse will oftentimes be unresponsive or slow to respond when it comes to making decisions about the children, then you may want to have sole legal custody.
“Physical custody” refers to how much time the children spend with each parent. You can have “joint physical custody” or “sole physical custody”. Joint physical custody means the parents are sharing physical custody of the children in some way. Many people think that “joint physical custody” means 50/50 custody. Although 50/50 custody is a form of joint physical custody, any arrangement whereby the children spend some amount of time in each parent’s physical custody is a “joint physical custody” agreement. “Sole physical custody” means the children are in just one parent’s physical custody. There are lots of different terms that people use when making physical custody orders (i.e., primary physical custody; primary residence of the children; reasonable rights of visitation; etc.). Don’t get bogged down in semantics. What is important is how your agreement defines the amount of time the children will spend with you versus the amount of time they will spend with the other parent.
Physical custody agreements can be vague or they can be very specific. They can also be something in between. A vague custody agreement may be something like, Mom shall have physical custody of the children and Dad shall have reasonable rights of visitation on dates and times to be agreed upon by and between the parties on a week-by-week basis. This type of arrangement may be necessary if Dad’s work schedule constantly changes, making a fixed custody schedule impossible. A specific custody agreement may be something like:
1) the children shall be in Dad’s physical custody on alternate weekends from Friday at 6:00 p.m until the following Monday at 8:00 a.m. plus every Wednesday from 6:00 p.m. until the following Thursday at 8:00 a.m.; and 2) the children shall be in Mom’s physical custody at all other times.
A vague custody arrangement will only work if both parties are reasonable and cooperative. If Dad has only “reasonable rights of visitation”, the agreement is so vague that it is essentially unenforceable. Dad could call Mom 20 times and ask to visit with the children and Mom could refuse visitation all 20 times without technically being in violation of the court’s order because “reasonable rights of visitation” is not precisely defined. On the other hand, if Dad has a specific custody order, he has clearly enforceable rights. If the custody order says Dad has physical custody of the children every Wednesday from 6:00 p.m. until Thursday at 8:00 a.m., and Mom refuses to turn over the children on a Wednesday at 6:00 p.m., then Dad has a court order that the court or the police can enforce.
In a nutshell, the more vague a custody order is, the more power it gives the parent with primary physical custody. Usually, the parent that does not have primary physical custody will want a custody order that is as specific as possible, defining his or her time to have the children as precisely as possible. Specific physical custody orders are generally best because they go a long way towards reducing the number of future arguments. If the physical custody order is well written and very precise, there will be a lot fewer arguments in the future over custody because both parents will know exactly when the children are to be in their physical custody.
In another section of this website, we will discuss various Judicial Council forms, as well as different provisions in a Marital Settlement Agreement, that can be used to address a lot of different issues that should be included in any child custody agreement (i.e., how to share holidays; vacation provisions; provisions about not exposing the children to cigarette smoke; provisions restricting the use of alcohol and/or drugs during custodial time; provisions for the sharing of the burden of transporting the children for purposes of exchanging physical custody; provisions limiting moving away with the children, etc.). [See the “Judgment” section of the website.]
If you end up having to litigate child custody disputes, the court will require you and your spouse to participate in “Child Custody Mediation” or “Child Custody Recommending Counseling” before you attend any child custody hearing. We discuss “Child Custody Mediation” and “Child Custody Recommending Counseling” in another section of this website. [See section entitled, “Contested Case”, subsection entitled, “Temporary Orders”, and then the subsection entitled, “Obtaining temporary child custody orders”].