One of the most common demands clients make is one for full custody of their children. But what does “full custody” mean? When explaining custody to clients, I usually tell them to imagine custody as a tree with two branches: one for legal custody and one for physical custody.
Legal vs. Physical Custody
Legal custody is the power to make major decisions that affect your child with respect to his/her medical and dental care, athletic involvement, religious affiliation, academic affairs, and cultural and civic participation. Legal custody can be held solely by one parent, or can be awarded jointly between two parents.
Sole legal custody is the power to unilaterally make those decisions without the requirement to consult with the other parent first. Joint legal custody, on the other hand, requires both parents to confer about those major decisions impacting their child so that all decisions are made jointly: It does not give either party final decision making authority.
There is a presumption at law that married parents should have joint legal custody of their children when the marriage ends in divorce. Accordingly, the law favors joint legal custody of parents, which is where the impact of physical custody comes into play.
Physical custody has to do with which parent the minor child spends the most nights. Physical custody can be held solely or primarily by one parent, meaning that the child spends the majority of his/her nights with that particular parent.
Physical custody can also be split jointly between the parents, meaning that the child spends approximately equal nights with each parent. In the event that parents share joint legal custody, but one parent is named the sole or “primary” custodian, then that primary physical custodian ultimately holds the final decision-making power in the event that the parents are unable to reach an agreement when conferring on major decisions that affect the child. On the other hand, in cases of joint legal and joint physical custody, the parties must rely on the court to make that final decision if there is a disagreement. In order to avoid this scenario, you will often see parents in a joint legal and joint physical custody arrangement have tie breakers for major issues regarding their children when they are unable to reach an agreement.
In addition to bestowing ultimate decision making power in a parent, sole or “primary” physical custody also provides a greater protection for future custody modifications. When one parent is awarded sole or “primary” physical custody, the legal burden for future custody modifications changes, and it becomes much more difficult for the non-custodial parent to successfully petition the court to modify the custody designation.
Understanding Full Custody
For these reasons, the client who demands full custody, is usually seeking sole or “primary” physical custody irrespective of the legal custody designation. Please remember that it is always best to know your judge and his/her preferences for custody arrangements—and to discuss your goals with your lawyer before making a custody demand, especially if you are asking for “sole custody!”