Custody: Basic Definition And Distinctions
Custody is defined as the care and control of a child.
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LEGAL CUSTODY
Legal custody is defined as the ability to make long-term parenting decisions: medical, discipline, education, religion, etc.
TYPES OF LEGAL CUSTODY
You start out with joint legal custody when you father a child. Joint custody means that both parents together make decisions about the child.
Now, technically speaking, joint legal custody means that no individual parent has final say over major decisions. In reality, it doesn’t really work this way and the moms can get away with hell (if they choose to go that route.) Hopefully, they don’t …
***It is very important to understand that all fathers, whether separated or not, have joint custody (for whatever it’s worth) of their minor child or children until a court rules to the contrary. Joint custody can work beautifully if both parents cooperate for the sake of the best interest of the child. Sadly, in the real world, some moms refuse to cooperate.
Sole legal custody is the type of custody in which only one parent makes decisions about the minor child. In the real world, joint legal custody tends to somewhat equal sole custody: in other words, the mother does an awful lot of major stuff without asking for dad’s input.
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PHYSICAL CUSTODY
Physical Custody simply refers to where the child or children live for the majority of the time. The parent with physical custody, has care and control of the child or children daily, and, this parent makes short-term parenting decisions. These basic sort of decisions involve simple things like what’s for dinner, what the child may watch on television, taking care of tiny details, etc.
Physical custody is called different things from state to state. Some states use the term residential custody, but, it’s the same thing.
***Before the creation of a court order, both parents, legally, have shared physical custody (custody de jure): it doesn’t matter if the parents are separated and the child is living with just one of them (custody de facto). This is the very reason why women will frequently embellish the truth and file a temporary restraining order. A TRO is sometimes just a brute-force custody grab. Believe me. I know. That’s how I lost residential custody initially. And, once that’s lost, it is difficult to achieve again. (I in no way mean to lessen the severity of real domestic violence!)
TYPES OF PHYSICAL CUSTODY
Shared physical custody (also called joint physical custody) occurs when the child lives nearly equally at both her mother and father’s houses.
There are several flavors of physical custody which you should think about:
- Week On / Week Off: The child or children alternate weeks, generally beginning after school on Friday
- Nesting: This is a somewhat strange and creative solution that can work if the parents are cooperative. In a nesting physical custody arrangement, the children stay at the same residence and the parents move out… now, that’s a kick!Three / Four: In a three four physical custody agreement, the children live with one parent for three days, then with the other parent for four days; the schedule then alternates the following week.
- School Days / Summer Vacations: The child or children live with one parent during the school week. The child or children then spend weekends, summer, and holidays with the other parent.
Sole physical custody occurs when the child spends the majority of her time living with one parent, who is referred to as the custodial parent. The other parent is the noncustodial parent, and, he has visitation rights.
Split physical custody is rare, and, it occurs when the children are split up between the parents. Both cours and child psychologist tend to frown on the custody arrangement.
That provides a summary of the basic definition and distinctions of custody. Elsewhere, we examine these issues in greater detail, but, I find that it’s first helpful to provide a succinct definition of the terms.
Now, the next thing you’re probably wondering is how custody gets decided.
Comments
Comment from Latosha Morris
Time: October 1, 2007, 8:08 pmMy fianc’e has shared legal custody of his daughter. Her mother recently took it upon herself to move the child from one daycare to another, without consulting with him. Which took the cost from $540 a month for 5 days a week of coverage to $815 a month for 3 days of coverage. Can she do this? She is also trying to move the child from Pennsylvania to Georgia can she do this without permission from the courts?
Comment from papa
Time: October 2, 2007, 11:43 pmLaTosha,
Thanks for stopping by. I am not an attorney, and, you need one to answer these questions. I can’t comment about the daycare part.
As far as your second question, I can make some comment; though, my case took place under New Jersey law. My x threatened to move our child to the other side of the country.
I threw a shit fit and called my lawyer. My lawyer told me that in order for her to do that she’d have to go through the courts and that we would definitely be able to stop her (or just make it so difficult that she’d no longer want to..)
So, consider that anecdotal… it’s from my life. But, what I tell people in these situations is that they need real legal counsel.
Thanks… and good luck.
Comment from William Gronemeyer
Time: December 24, 2007, 5:17 pmI have a situation where it WAS amicable, until this christmas where the MOTHER made arrangements for our child on MY holiday. We had always agreed to share holidays, and now all of a sudden when it was my christmas she decided they have plans with her “new” family. We were never married, we never had to go to court or anything. Would filing a complaint with friend of the courts work? I doubt it. Genesee county in Michigan is biased against the father it is unruling.
Comment from papa
Time: December 26, 2007, 3:17 pmHi William… I’m not sure I completely understand the last part of your comment. I understand that you and your ex have been able (up until now) to resolve things between yourselves without court intervention… and, that’s a good thing! And, adults should be able to do that!
But, apparently your x is now involved with another guy and she cheated you out of Christmas with your child.
My advice is to first try and talk this out with your x … and, possibly, with a counselor or mediator if you guys are starting to get a little worked-up….
But, if that doesn’t work, you should consider a lawyer and a motion because it sounds like this might be the beginning of a trend… I can’t say… I’m only basing this upon your brief comment.
Best wishes!
Comment from Psychological Parent
Time: January 10, 2008, 11:52 amQuestion regarding child support:
I am currently in a legal battle with my ex-partner (the biological mother), so essentially, I am the “father” in all this. Anyway, once custody is determined, I’m sure child support will come into play. Can you explain to me the difference in child support payments for a joint legal custody situation (where primary residence is with the child’s mother) versus sole custody to the mother and I am a non-custodial parent.
Thanks.Comment from papa
Time: January 13, 2008, 8:32 pmDear Psychological Parent,
If possible, please try to speak with an attorney about your question. I’m not qualified to answer that. In case anyone is wondering, I put this site together to collect a bunch of information that I was having trouble finding online. So, I bought some books to find the info and I posted the stuff here so others could find it on the web. That having been said, I’m not an attorney, so, there are a lot of questions that I’m asked which I can’t in good conscience answer. I always advise to talk to a good family lawyer.
I wrote a little article about how to find a good family lawyer. Now even if you think you can’t afford this (and maybe you can’t) bear in mind that a lot of attorneys have an initial free consultation … you can get a lot of questions answered in this way also…….
GOOD LUCK!
Comment from concerned dad
Time: February 20, 2008, 8:42 pmQuestion about custody lingo:
I live in the Phoenix, AZ area and my ex has informed me she plans to move out of state for financial reasons (i.e. she can’t make it in this area any more). At the moment we have joint custody, 50/50 and generally share in everything that has to do with our son. She wanted me to just let him go and I refused. I’ve been in his life since she asked for a divorce, we have what you referred to as a three/four plan. He spends two nights at my house during the week and every other weekend. I’ve paid child support even before a court order and have provided for him above and beyond that.My question is that in the custody documents it states that she is the primary residential parent, I’m assuming that is what you referred to above as “residential custody”? If that is the case..how difficult will it be to fight this. I plan to one way or another, already working on getting papers filed and an attorney. I simply wanted to get as much information beforehand to better understand the situation.
How much should I be worried about this article by this Burgess v. Burgess ruling in California?
Comment from papa
Time: February 20, 2008, 10:55 pmHi Concerned Dad,
As you probably know from reading through this site, I am not a lawyer, and, I recommend that dads find a way to consult with an attorney like using the question box above. Now, you indicate in your comment that you’re in the process of getting an attorney…That having been said, I actually dealt with a somewhat similar situation. My x told me that she planned on moving across the country with my daughter.
I told her, basically, over my dead body and I called my lawyer. My lawyer told me not to worry. That she’d have to take me to court in order to do that and the Judge wouldn’t go for it. And, we could make it so difficult, that she wouldn’t want to do it.
Now, this is just my personal experience so take it for that. I told my x that if she tried, my lawyer would stop her. My x didn’t try. She later said that she could have pulled it off but it would have been difficult and expensive.
And, believe me… .. if it could be done (moving away), she would have done it… so, the fact that she hasn’t moved away to me is a pretty good indicator that she couldn’t pull it off…..
That having been said….
….. when you’re in court, you really never do know what’s going to happen. But, it is always about best interest of the child, and, if you can show that whatever circumstance is not in the child’s best interest, I say you have a pretty good chance.
Bear in mind that the Burgess case involved an intrastate, 40-mile move. You are talking about an interstate move. Also, since you mention Burgess, you may also be interested in LaMusga, but, what you really need to do is talk to a lawyer.
Good luck and please report back. When people tell their stories, I’m always interested in hearing the follow-up. : )
Stay strong….
Comment from concerned dad
Time: February 21, 2008, 9:27 pmThanks for the info and support.
So, this was a faster resolution than I had anticipated. My ex informed me this morning that she would no longer be contesting my desire to keep my son in state. She is moving and leaving him with me. I don’t think it is the best solution for our child, he’s going to lose a lot of time with his Mom. Which is unfortunate but she doesn’t see any other alternative.
She is going to write a letter, have it notarized and submit that to me or the courts or something. I spoke to my legal counsel who suggested I still go forward with the amended custody papers.
Comment from papa
Time: February 21, 2008, 10:33 pmWell, I’m glad at least that you have quickly achieved some sort of resolution. I appreciate your focus on what’s best for your son (which includes spending time with his mother.) That’s a type of maturity that it seems a lot of disputing parents lose sight of … on the bright side, you’ll be seeing your son every day. And, that’s a beautiful thing. My best to you, your son, and your x.
Good luck!
Comment from Jenna
Time: March 18, 2008, 10:14 pmHello. My boyfriend and I have his daughter fifty percent of the time, she lives in our home during that time. We have it marked on a calandar every day that we have had her. We saved every reciept. Her mother filed child support- and her mother lives in her aunts house with no job. Can we contest the child support, if so how can we? Would it be better to file custody? He doesn’t believe he should give her a dime because she doesn’t help us when we have her.
Comment from Christine
Time: March 18, 2008, 10:19 pmPlease help! I am going through a divorce. My husband moved out and is living with his mother. He works 6 days a week and has Sundays off. I work full-time as well. He wants his visits to be two nights a week for approx. 3 hours, and Sunday. He will only do ONE overnight EVERY OTHER WEEKEND. Which means I have them for 28 overnights per month, and he only has them two overnights per month. This just doesn’t seem fair to me. He said that, get this, he needs time to himself. Are you kidding me? He rarely sees his kids. Any comments on this situation? Is it just me?????
Comment from papa
Time: March 19, 2008, 8:34 amYes, Christine… hi… I do have a few comments on this situation… you see, it is an amusing reversal on the more typical type of conflict we see on this site which is that the father wants MORE TIME with the kid or kids and the mother is preventing that…
… here we have you saying, essentially, “It’s not fair that you don’t take the kids more.” LOL ……….. that’s just such an absolute switch from the war I’ve been in for the past four years! I mean… I’ve been spending thousands of dollars and so much time and going to court so I can actually SEE my daughter…
well, you made my day with your comment! Especially the way it starts out with the “Please help!”
I am not trying to be unsympathetic to your plea for help… but, honestly, this is a real laughing my ass off of a humdinger of a comment.
thanks Christine and good luck!
Comment from papa
Time: March 19, 2008, 8:40 am@ Jenna… take a look at this site:
http://ancpr.com/forum/index.phpIt will probably help you.
Comment from Ruben Che Espinoza
Time: March 30, 2008, 7:14 pmwhat about children born out of wedlock? the law states that” after a mother and father sign an acknowledgment of parentage concerning a child born out of wedlock, in acccordance with the acknowledgment of parentage act,MCL722.1001 et seq, the mother has custody of that child unless otherwise detemined by a court or otherwise agreed upon by the parties, in writing. a police agency may rely on a duly executed acknowledgment of parentage as establishing the mothers custody of the minor child, unless presented with a court order or written agreement signed by the parties stating otherwise.” I had no idea that the law was like this until i started to have to fight to see my daughter. On top of this hellish law my baby’s mother has been lying like the devil she realy is, she even went and got a ppo on me right before my conciliation meeting acusing me of raping her also saying that i’m very controling and that i got her pregnant on purpose to trap her. The crazy thing about it is that i have a ton of proof that she is lying her ppo was more like a book about our entire relationship but i have a lot of letters that she has written to me throughout our entire relationship and the two totaly contradict eachother. I even have text messages on my phone that she sent to me right before all of this started saying that she dont want me to go to the courts she knows i need to see the kids she even said things will get better she promises. because she started telling all these lies about me for some reason the judge handling the case called us both in after my conciliation meeting wich according to my attorney is unheard of . The judge didnt let me hardly talk at all and my ex was lying saying that when i have the kids i dont take care of them she said that when they stayed the night that i didnt give them their medicine that i didnt bath them, all lies and the judge made me have supervised visits wich cost me $25 an hour. I didnt do a damn thing wrong to have my daughter taken from me like that. I finaly had a refferee hearing in wich my ex got caught in some of her lies like about contacting me and about smoking marijuana there were alot of accusations about druds so the conciliator made us drop that friday, I dropped clean my ex didnt drop until the following monday and still dropped dirty and the conciliator didnt even help me! she made things worse she added another class, parenting classes but i still have to be on supervised visits. I cant believe the law, just because i didnt marry this devil i have no rights over my daughter and i didnt do anything to deserve supervised visits my ex lied and they believed her. And that devil of a judge took my baby from me without a reason,just off of hear say. I want my baby back somebody help me im in hell!
Comment from Charles
Time: April 9, 2008, 3:25 amI am currently paying child support to the mother of my son, she complains that I am not involved in my son’s school life. He doesn’t live with me, she wants me to pay for all of his school fees because she takes him to school everyday. We both agreed that i can take him every weekends and whenever i want to during the weekdays. and I took record of all the days I got him. I have no record of being abusive, alcoholism and i quit smoking. I have a place of my own and my son is sleeping in the same room as her and bf. I want to take her to court but cannot afford an attorney. what can i do? I live in California. Thanks
Comment from papa
Time: April 9, 2008, 11:54 pmHi Charles, not being able to afford an attorney doesn’t mean you can’t take her to court. When you represent yourself in court, it’s called pro se, and, a lot of people do that… it’s a lot of work, but, I’ve read many people are happy with the results. I’d say, based upon the small amount of information you provided, that you could make a “best interest of the child” argument… I’m presuming that you have a separate room available for your son.
You never know what’ll happen in court. A lot depends simply upon the Judge you get. I could picture a number of Judges frowning on the child sleeping in the same room with the mother and boyfriend. How old is the child?
Anyway, in order to proceed without a lawyer, you are going to need to do a lot of studying.
This is a good forum that can help you. And, you can get questions answered by a legal expert for a small fee.Good luck and stop back with an update.
Comment from depressed dad
Time: May 8, 2008, 1:26 pmmy sons mother died back in feburary of this year when she died she had full custody of my son we split legal custody now her mother thinks that she is going to keep my son do i have sole custody of my son since she died or do i have to fight for him all over again
Comment from papa
Time: May 8, 2008, 2:14 pmDear Depressed Dad, thanks for stopping by, and, I am sorry to hear about your situation. I certainly understand why you would be depressed. And, I’m sorry for your son losing his mother.
I think you are going to have to go to court to modify your son’s custody. I don’t know all of your circumstances; but, in these situations a dad, from my reading, generally has a big advantage over the grandparents (as it should be.)
Now, I am not an attorney, and, for something this important, I recommend you use this service (and, it is quite affordable… especially compared to actually hiring a lawyer at $300 an hour!)
Good luck to you. I discuss elsewhere on this site things that a person can do to battle against depression. If you don’t mind me throwing my 2 cents out, I’ve found that the best way for me to fight depression is through a 3 point plan: good diet, exercise, and plenty of sleep.
Okay, good luck!
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Time: May 19, 2008, 1:39 pm[...] Custody: Basic Definition And Distinctions [...]
Comment from bradyns daddy
Time: May 22, 2008, 9:36 pmI need to see if you know of any organization that helps dads out that can’t afford legal help. I’m about to lose all rights I have with my son because I can not afford a lawyer.Thanks,Bradyns daddy
Comment from papa
Time: May 23, 2008, 12:33 amBradyns Daddy, yes, I’ve got a few suggestions for you:
Here is a link to a free forum that is a good spot to get some help:
http://ancpr.com/forum/index.phpHere is a way to get a lawyer to answer a question for cheap:
http://www.princedaddy.com/family-law-questions-answered-for-a-fee/good luck
papa dComment from KRISTY
Time: June 5, 2008, 12:58 amI AND AN X BOYFRIEND SHARE A CHILD TOGETHER. I UNDERSTAND THAT EVEN THOUGH WE WERE NEVER MARRIED THAT I HAVE SOLE CUSTODY OF HER. THEIR IS AN AMOUNT OF CHILD SUPPORT THAT WE HAVE ESTABLISHED. IT IS NOT EVEN CLOSE TO WHAT THE COURTS WOULD MAKE HIM PAY.HE ONLY HAS HER WHEN HE CALLS AND WANTS TO TAKE HER FOR A FEW HOURS. I HAVE BEEN VERY NICE TO LET HIM HAVE ANYTHING TO DO WITH HER, HE HAS BEEN IN JAIL 5 TIMES, AND IS NOT THAT FIT OF A DAD. MY QUESTION IS, IS DOES HE HAVE TO PAY ANYTHING AT ALL, EVEN THOUGH THEIR ARE NO COURT PAPERS?
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