Custody is generally the most important issue people face when first meeting with Charleston SC divorce attorneys. So in any situation in which a divorcing couple has children, an exploration of the different types of custody is the first topic of conversation.
Joint custody is frequently the type of custody potential clients want to discuss first in our consultations, as the laws and courts in South Carolina have slowly come to view it more favorably. As with any legal matter, the words that we use in discussing joint custody are of utmost importance. Misusing legal terms or not having a full understanding of their meanings can lead to misunderstandings and problems down the road. This article is an effort to clarify the language of joint custody, and in so doing, to help in identifying whether or not this arrangement will work best for your family.
1. Legal custody and physical custody.
A joint custody arrangement actually consists of two distinct types of custody, legal custody and physical custody.
Legal custody, in laymen’s terms, is the authority to make “major decisions” on behalf of your minor children. Major decisions are generally defined as decisions pertaining to: a) medical issues (i.e., choice of doctor, whether or not to undergo elective procedures, start or stop taking medications, etc.); b) educational issues (where the children attend school, usually); c) religious issues (in what religion the children are to be raised, what church they will attend); and, d) extracurricular activities (what sports they will play and where, what instrument they will play, etc.).
Physical custody refers to the parent with whom the children will primarily reside. One parent’s physical custody of the minor children is generally subject to the other parent’s visitation rights. However, within the context of a joint custody arrangement, the term “visitation” is generally substituted with “time-sharing.” A joint custodian will generally not like the idea of “visiting” his or her own children, and words do matter.
2. Primary and secondary custody.
For each “subset” of joint custody (legal and physical), one parent is generally deemed “primary” and the other “secondary.” These words have little meaning outside the context of joint custody, but people new to the process (and frankly even experienced Charleston SC divorce attorneys will sometimes use them simply as a replacement for other joint custody terms.
When it comes to primary/secondary, the more important of the two pertains to legal custody. Typically, within the framework of a joint custody arrangement, the parents, when tasked with making a “major decision,” are required to communicate with one another in good faith in an effort to reach a consensus as to what is best for the kids. “We need a new pediatrician. What do you think about Dr. X?” “She seems OK, but I’ve heard really good things about Dr. Y and his office is closer to our houses.” “I agree, let’s use Dr. Y.”
In the majority of circumstances such as these, that communication is sufficient to resolve the issue. There just isn’t a lot of conflict about whether to play soccer or baseball, or whether to go to the local high school or the academic magnet across town. Divorced parents can and do agree with one another every day about what is best for their children.
However, if that communication fails to resolve a difference, “final decision-making authority” is reserved for the “primary legal custodian.” This authority, essentially the right to break ties, only kicks in after good faith consultation is had between the parents. Same conversation as above, but substitute “I understand your position, I’ve taken it under consideration, and I think we are going with Dr. X.”
We should be clear. The primary legal custodian is not in control of a child’s records. They cannot shut a secondary custodian out of relevant information about the children. A primary legal custodian that operates with less than full transparency when it comes to the children is likely flirting with disaster.
The secondary legal custodian is not without recourse, but it can be a bit of an uphill battle. The secondary custodian can petition the courts to undo a decision make by the primary legal custodian, if he or she believes that the decision is so wrongheaded that it is actually not in the child’s best interests, or that some harm may befall them as a result. A secondary legal custodian is also really just waiting in the wings; if a primary custodian neglects his or her duty to consult, or in some other manner ignores or minimizes the secondary parent’s rights, a change in custody action is always a possibility.
The primary/secondary distinction is of less importance when it comes to physical custody. The primary physical custodian will be the parent with whom the children spend more than half of their time. Circumstances in which time is split evenly with the parents are referred to as “shared physical custody” or “true shared custody.”
3. Joint custody and shared custody are not the same thing.
“Shared custody” refers to a rather unique set of circumstances in which both legal and physical custody of the children are equally divided. Legal custody can be equally divided either by setting aside specific areas for each parent (i.e., Mom has final decision-making authority on medical and religion, Dad has authority for education and extracurricular) or by simply having no primary parent at all. Having no mechanism for breaking ties is strongly disfavored by our courts absent some exceptional circumstances, and generally discouraged by Charleston SC divorce attorneys.
Shared physical custody means that the parents divide time with the children on an equal, 50/50 basis. The most common of these arrangements would be “week on, week off” with each parent.
Many parents, even lawyers, use terms like joint custody, primary custody, shared custody, etc., interchangeably, which can lead to real confusion. If custodial arrangements are negotiated improperly, or orders written in a way that can lead to multiple or contradictory interpretations, real chaos can ensue.