Joint versus sole physical custody

[La Sombra]

STBX and I are doing this divorce on our own, without lawyers (sort of; I'll get to that) because neither of us can in any way afford them.

I do, however, have a dear friend who just so happens to be a divorce attorney who has been really helpful. He can't officially legally represent me for free since his firm wouldn't allow it, but he has told me every step of the way what to do and has even written the complaint for me.

He put in there that I'm asking for sole physical and joint legal custody. I thought nothing of it but when STBX got served with the papers, he freaked. He says he's going to fight it. He thinks it means that I will have the legal right to withhold dd from me, which I KNOW it does NOT mean.

But what are the advantages to filing this way, if any? Will he have any grounds for fighting this? I currently have dd 5 days a week, he sees her Sunday evening at 7pm through Tuesday morning at 8:30am.

He says he doesn't want more actual physical custody of her, he is happy with our arrangement but that he just wants shared physical legal custody of her. Should I relent? If so, why? If not, why not? How do I convince the judge to see my side of things if I do decide to argue against his argument?

TIA!

[Marsupialmom]

I think your ex is concern about loosing his daughter and access to his child. This is a understandable fear. He needs to get a lawyer to help him understand.

http://www.childcustodycoach.com/physical-custody.html

By reading that site maybe the term primary custody would be more wise for you to use.

http://singleparents.about.com/od/le...al_custody.htm

I read a few site and sole custody might be a stigmatism that he doesn't want.

http://www.divorce-lawyer-source.com...e-custody.html
Sole custody is when one parent gets full legal and/or physical custody of the children from a dissolving marriage or relationship and the other parent is denied that custody. Sole custody will be awarded to one parent when the family court determines that such an arrangement is in the best interest of the children involved. Depending on the case, sole custody may be in the best interest of the parents or it may not. Sole custody arrangements may also be the consequence of a domestic violence situation or some other circumstance where one parent is denied custody in the interests of the child's welfare.

The highlighted section I read simular statements. It is often given when one parent is "less" that desirable. Maybe not horrible but there is issues. This understandably is something he doesn't want implied.

[La Sombra]

Originally Posted by Marsupialmom

I think your ex is concern about loosing his daughter and access to his child. This is a understandable fear. He needs to get a lawyer to help him understand.

http://www.childcustodycoach.com/physical-custody.html

By reading that site maybe the term primary custody would be more wise for you to use.

http://singleparents.about.com/od/le...al_custody.htm

I read a few site and sole custody might be a stigmatism that he doesn't want.

http://www.divorce-lawyer-source.com...e-custody.html
Sole custody is when one parent gets full legal and/or physical custody of the children from a dissolving marriage or relationship and the other parent is denied that custody. Sole custody will be awarded to one parent when the family court determines that such an arrangement is in the best interest of the children involved. Depending on the case, sole custody may be in the best interest of the parents or it may not. Sole custody arrangements may also be the consequence of a domestic violence situation or some other circumstance where one parent is denied custody in the interests of the child's welfare.

The highlighted section I read simular statements. It is often given when one parent is "less" that desirable. Maybe not horrible but there is issues. This understandably is something he doesn't want implied.

Hm, but what you highlighted seems to use the term custody (generically) the way I understand the legal term "legal custody." In our case, I propose joint legal custody; I have no intention or desire to deny him custody nor do I feel I have any grounds to do so.

I didn't use "primary custody" or any other term because my complaint for divorce was a legal document so I had to use the legal terms, in this case "full physical custody." He read the wordage complaint and even though I explained to him that it doesn't mean I have the right to deny him access to her, he doesn't believe me and wants to fight it.

[robinchap1]

This is my understanding:
Legal custody involves major decision making such as medical and educational decisions.
Physical custody is where the child resides more than 50% of the time. The only reason he would have joint physical custody would be if he had her 50% of the time.
Sole physical custody does not grant that parent right to make decisions about visitation, etc. The parent is bound to the divorce agreement that you both agree to (or is issued by a judge if you don't agree).
It sounds like you've already agreed to the physical custody situation, he just doesn't have an accurate understanding of the terminology.

If he doesn't believe you, I imagine he could call any family lawyer out of the phone book and ask the question about what sole physical custody means and have it explained on the phone without a fee.

This is how it is in my state. I don't know for certain that other states aren't different, so you should confirm with a lawyer.

Good luck!

[KalamazooMom]

Originally Posted by robinchap1

Physical custody is where the child resides more than 50% of the time. The only reason he would have joint physical custody would be if he had her 50% of the time.

That's not how it works here. Joint physical custody just means the kid resides SOME of the time in both houses-- could be 50-50, could be 90-10.

Yes, I think this is something that varies quite a bit by state.

[La Sombra]

Originally Posted by KalamazooMom

That's not how it works here. Joint physical custody just means the kid resides SOME of the time in both houses-- could be 50-50, could be 90-10.

Yes, I think this is something that varies quite a bit by state.

Hm, interesting. Well, KalamazooMom, I'm in Michigan, too. If sole physical custody doesn't depend on how much time the child is with each parent, what DOES determine it here in Michigan? What rights, if any, does it grant the parent with sole physical custody?

Thanks all, again!

[KalamazooMom]

I don't think I can really answer those questions. We did use this book which was very helpful

http://www.amazon.com/Michigan-Divor...4891204&sr=8-1

I think you might find it at a public library.

My understanding is that joint physical custody doesn't mean much of anything when it comes right down to it. I think it just means that the parent who has the kid at any given time gets to make the day to day decisions. The Parenting Time Agreement is what spells out when the kid is with whom, how the exchanges are made, how holidays and exceptions are handled. If you can agree on that I don't really think the legal terms for what kind of custody it is really makes a difference. I'd be tempted to drop it if your stbx is that bent out of shape about it. As others have said joint legal is probably what he really wants-- meaning you have to agree about medical and school and other major decisions.

[Marsupialmom]

Lawyers can be pit bulls at time. I would talk to my lawyer about the wordage. I think you can see from the internet different areas have different laws. The implication behind one word could mean a lot more in your area.

When I divorced my ex, we/I had issues with my lawyer wanting to be way more aggressive than I wanted. If I was not leaving the state we could have filed with out legal help, but moving added a complication.

We have other friends that have gotten new lawyers because the lawyers are being to agressive.

[Ceinwen]

Originally Posted by KalamazooMom

That's not how it works here. Joint physical custody just means the kid resides SOME of the time in both houses-- could be 50-50, could be 90-10.

Yes, I think this is something that varies quite a bit by state.

That's how it is here in Ontario. We have joint legal (joint decision making) and joint physical custody - although I have 'residential' - where it states that the primary residence and 'day to day decision making' resides with me.

Our agreement also lays out what my ex's parenting time is, when, for how long, etc.

[Smithie]

OP, I think that your lawyer friend is just trying to put you in the best possible position in case you someday want to reduce or change the nature of the visitation (what if your ex gets a new gf who treats your dd horribly, etc.?) Even if he is an awesome dad right now, lawyers are kind of trained to think about how to protect their client in the worst-case scenario, YKWIM? He might also be trying to put you in the position to receive the maximum possible CS payment. Give him a call and ASK him what he hoped to achieve by the "sole physical custody" wording.

That said, I think it's something that I might be willing to back off on, in a state where it didn't mean much anyhow. If nothing in your situation is abusive/dangerous/etc., Parenting Time agreement is likely to be the most important aspect of the shared custody agreement. Get that set up the way you want it, AND make a clear provision for how it can be EASILY and QUICKLY modified in the future. For instance, if one of you moves cross-country in the future, you will both want to switch that thing around without any further legal hassle.

Also, when your STBX says "fight," what does he mean? Is he suddenly going to be able to afford a lawyer? Or is he just fighting with YOU? In any case, if you are not scared for your daughter's physical and mental safety when she is in his custody, I agree that it does make sense to work this out between yourselves rather than spending money on lawyers. If his home is not a safe place for her to be - then sell your soul to pay a lawyer to represent you in this matter.

Assuming there's no abuse, my biggest question in this situation would be if the "sole physical custody" phrasing results in a higher CS payment. Your lawyer friend should certainly know the answer to THAT one.

[La Sombra]

Thank you all so much! Yes, obviously contacting my friend is the best thing to do. I did ask him about it a little bit but his answer wasn't terribly thorough and sometimes I just feel bad bugging him since he has done so much for me already and he's done it all for free. But I appreciate what you have all shared, and I agree the best thing is to check with my friend and go from there. It doesn't seem (according to what he told me and according to what most of you have said) that that particular point matters much so it might well be something I relent on.

I guess I was just confused about, okay, if "sole physical custody" doesn't really confer any special benefits or anything like that, WHAT EXACTLY, in specific legal terms, is the difference between that and shared physical custody?

Off to phone my friend, thanks again all!

[KalamazooMom]

Originally Posted by Smithie

OP, I think that your lawyer friend is just trying to put you in the best possible position in case you someday want to reduce or change the nature of the visitation (what if your ex gets a new gf who treats your dd horribly, etc.?) Even if he is an awesome dad right now, lawyers are kind of trained to think about how to protect their client in the worst-case scenario, YKWIM? He might also be trying to put you in the position to receive the maximum possible CS payment.

That said, I think it's something that I might be willing to back off on, in a state where it didn't mean much anyhow. If nothing in your situation is abusive/dangerous/etc., Parenting Time agreement is likely to be the most important aspect of the shared custody agreement. Get that set up the way you want it, AND make a clear provision for how it can be EASILY and QUICKLY modified in the future. For instance, if one of you moves cross-country in the future, you will both want to switch that thing around without any further legal hassle.

The more I think about this the more I think the "sole physical custody" isn't going to get you anything. I am not a lawyer. This is just based on my experience.

If in the future you felt it wasn't in your DC's best interest to spend time with your X you'd still have to go to court to get that changed.

In the state of Michigan there is a limit of 100 miles, or across state lines for one parent to move without the other parent or the courts permission. So again if you wanted to move and he didn't want you to you'd still have to go to court.

And I know that it doesn't make any difference in the CS calculation. I clearly remember running those numbers many time. It included incomes, cost of day care and health insurance, and number of overnights with each parent.

I'm curious to know what a lawyer says, but my guess is this is not worth fighting about.

[racheepoo]

I too agree that this is probably not worth fighting about...unless, as someone else mentioned, you have an abuse situation.

[grisandole]

Here in CA sole/primary physical custody is a legal term to define which parent has the child more than 50%. My ex has about our da about 35% of the time, therefore I have primary custody.

While it does not effect c/s, as they use the %, it can come in handy if things go south and your ex tries to claim your child as a dependent for taxes...it would be easy to prove otherwise, yk?

It also helps here with school so that the non-custodial parent cannot just go and remove the child from school without permission.

[meemee]

i notice from your location that you say USA for now!! do you have plans to move in future? in california if you have sole physical custody then you can move a certain distance from your ex without taking away time. you would have to figure out how to do the transportation and time issue.

but if you have joint physical custody then neither parent can leave a certain distant without the other parent's permission as kalamazoomom pointed out.

perhaps there is this in MI and your friend knows your desires and wants to make it easier for you in future.