In divorce and paternity cases, the term “custody” has a number of different meanings. If you are contemplating divorce or in the process, understanding this term is key. If you are divorced or paternity is established, you might think you understand the “custody” terms you agreed to in reaching an agreement or as ordered by the court; but if you and the other parent don’t have a meeting of the minds on the meaning of custody connected with your “custody” order, it will cause conflict or potential litigation. This blog explores four terms and meanings connected to “custody”: 1). physical custody, 2). legal custody, 3). parenting time, and 4). visitation.
Physical custody: This is often referred to as primary custody and has nothing to do with legal custody, except the physical custodian may more often also have sole legal custody. Physical custody reflects the parent who will have the child spend more nights at his home over the course of a year.1 This is what the law presumes at this time to be in the children’s best interests.
However, there is a growing trend amongst litigants that joint physical custody is a better parenting model, particularly for older children. This may be accomplished in a number of ways, such as week on, week off, 3-2-2-3 repeating alternating days, or 5-2-2-5 repeating alternate days. Sometimes any time more than the time set forth in the Indiana Parenting Time Guidelines (“IPTG”) is bitterly fought because the parent who receives more overnights (the non-physical custodian) than called for in the IPTGs, will pay less child support to the custodial parent in general.
As a related point, the Child Support Guidelines (“CSGs”) are not particularly well developed or for this scenario; and one parent has to be designated the primary physical custodian to account for controlled expenses factored into the child support formula (a “controlled expense” is something such as the parent who would purchase a child’s winter coat).
Finally, consistent with the national trend of joint physical custody, there is a growing constitutional argument being considered and debated amongst the family law bar that the fundamental right to raise one’s children with a minimum of state interference requires joint physical custody as the presumption. This matter will likely reach certain states’ high courts and the United States Supreme Court at some point since SCOTUS has already identified this fundamental right.2
So the take away is to fully understand what you are agreeing to with physical custody or be advised by your counsel as to your order. This can avoid mistakes and unnecessary litigation or disputes in what are inherently tense, sharing a child both parents wish to maximize time with. Physical custody thus has a broad range of meanings and applications.
Legal custody: Legal custody is a misunderstood term.3 Legal custody relates to who makes decisions about the child’s health, education, and religion. This may be joint or sole. Generally speaking, sole legal custody is ordinarily given to the physical custodian. There are a number of reasons for this but they are beyond the scope of this blog post. A significant myth is that legal custody pertains broadly to making the decisions when a child is in a given parents’ care. This is not the case.
As a general explanation, legal custody as to religion allows the parents to jointly agree to a religion for the child and take him or her to church consistent with that religion. Where the parents cannot agree, then the court can give one parent sole legal custody on just one of these elements of legal custody. So it is possible one parent will have sole legal custody on one issue, such as religion, and not all issues, or joint on one or two but not all.
While it may seem rare, a fair number of parents differ on medical care, from childhood immunizations to a tonsillectomy. This all too often is not thought through at the time of settlement or trial and does not come to a head until the issue at hand. Now a significant number of parents have differences of opinion on immunizing with Gardasil, the new vaccine against human papillomavirus (HPV). Also in the teen years (and before), parents often have strong views against medication for attention deficits and hyperactivity medical issues. So in the optimal situation, think through this in advance and understand what may arise with joint medical decision-making in legal custody.
Finally, educational legal custody is far too often an on-going battle with school selection. For instance, if one parent values education and the other sees it more as just a basic staple of childhood development, there may be a tremendous disagreement about public or private schools. This is even the case where the parents have the ability to pay for private schools.
Like physical custody, legal custody also may become a battleground where shared or joint legal custody is awarded on all the major life decisions it covers or just on certain ones. Like physical custody, legal custody can also be moved to be modified upon a showing of certain changes in circumstances, so even the best agreement and order can still lead to litigation. However, this is minimized by understanding up front the range what these terms mean and how they may be applied. Think about these at the time of divorce or paternity establishment or when litigation is inevitable.
Parenting Time: Parenting time is set forth by rules of the Indiana Supreme Court. Generally, it is every other weekend and one night during the week, with the summer divided. Holidays are set on a rotating schedule. Yet when the parents change to a more or less joint physical custody, the IPTGs do not work well, except as a default such as for rotating holidays or special events.
Thus, when some custody arrangement is agreed to above the presumed sole physical custody and IPTG time tailored to it, the litigants have to take great care to address ambiguities. The perfect agreement or order leaves little “gray” area. Also, the IPTGs have recently been revised so it is important to specify which version is being used in older divorce cases when modified.
Visitation: Visitation is an outdated legal term that was replaced by the IPTGs. The thinking is “visitation” is reflective of a removed parent who just had visited with his or her child, no meaningful and engaged time. However, there is still some limited application for this term in domestic law. A parent who poses a significant physical or mental risk to a child may be ordered to have “supervised visitation” by a provision of the law in the Paternity or Dissolution Acts.4 This type of contact is removed from a meaningful engagement from the child and is likely why this term is used.
Also, grandparents have very limited rights to see their grandchildren under the Grandparent Visitation Act and thus any time they do receive is “grandparent visitation”. 5
Ciyou & Dixon, P.C. advocates handle divorce and paternity cases and modifications throughout the state. This blog post is not intended as specific legal advice, not a solicitation for legal representation. It is an advertisement.