Defining Custody, and How It Impacts Child Support
Custody is a legal term of art that is often misunderstood, somewhat complicated, and partially obsolete. Let me provide some insight. Misunderstood: the divorce statutes define custody by defining its different parts and these things associated with custody, but they never define the actual term. So we know what custody is made of and how to go about determining those parts, but never do we get just one simple explanation of what exactly it is.
Misunderstanding of the concept is the result. Complicated: I’m not talking rocket science complication, just that there are different aspects to custody, and it’s important to keep them in mind when discussing it. Legal custody is one aspect. It is defined as the right to determine the child’s upbringing, and upbringing apparently is to include the big three: education, healthcare, and religious training.
Now, the source of this right has an extremely long and significant history. Our US Supreme Court has determined on many occasions, that this right goes back to the Bill of Rights’ Fifth Amendment, and later, the 14th amendment, right to liberty. A person’s constitutionally protected right to liberty includes the intrinsic human right to family privacy, and it is identified as a parent’s right, not mom alone, and not dad alone.
So how does this work when the parents separate, and there are two different households? Let me circle back to that. Physical custody: the statute also defines physical custody and residence as the routine daily care and control, and the residence of the child. So there are two distinct aspects to custody: legal, including decisions about the big three, and physical, decisions of a day-to-day nature and the residence. The court needs to address both aspects, whenever custody of kids is in play, whether it’s a divorce or an action between parents who are not married.
Adding to this is a concept of joint custody. This is where both parents have equal rights, as it relates to legal and/or physical custody. The statute grants to the court the power to vest either or both of these rights in one or both of the parents. So the court could grant one parent alone, the legal and physical custody of the kids, or the other parent, or establish a joint legal and sole physical custody to one or the other. And I have even seen one parent get sole legal, and the other parent, sole physical custody. It’s complicated.
Adding to this is a specific presumption in the law that should either party so request, the court must presume that joint legal custody is the right decision. This only relates to legal custody, not physical. And there is something in reverse. Should there be a history of abuse, the opposite presumption exists, and this does include both legal and physical custody.
So let’s recap. Legal and physical custody, sole or joint, presumption in favor of joint legal, presumption against joint anything, if there’s a history of abuse/ my experience is parents just want to be parents. They want to have a relationship with their children, and do their part to help raise the kids.
Partially obsolete: what we haven’t talked about is the weekly schedule for the kids. That’s because while the schedule relates to custody, we don’t include that in the custody definitions. Instead, we refer to time each parent spends with the children as parenting time. A court can determine custody labels, but the real work is coming up with the best schedule. That is where the fight is generally focused, and that potential disagreement has been heightened by the fact that the newest couple of child support changes have directly linked the amount of child support to the schedule.
Child support used to be tied to the physical custody label, now it is not. It is tied to the number of overnights each parent has. So the physical custody label has been deemphasized. It is partially obsolete. State divorce and custody laws attempt to respect each parent’s inherent right to parent their children, but the right of parents while important, are secondary to what is best for the children. Next time, we’ll take a look at parenting time.