Primary/Joint vs. Sole - Semantics?
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| Fri, 06-03-2005 - 4:37pm |
I'm trying to get this all straight in my mind...worst-case scenario, I could end up with primary physical custody of DS with joint legal custody. I'm going after sole physical and sole legal (there would be visitation with his father, of course). There's a decent chance that I'll get it, but just in case, I'm wondering...what does primary physical with joint legal REALLY mean, in plain English? From what I can determine, if I had sole physical/legal, I wouldn't have to answer to STBXH for any decisions that I made re. DS. But it seems to me that although I'd be required to consult with him should he get joint legal custody, I'd still be basically free to parent DS in the way that I thought best, as long as I was doing whatever it was that I wanted to do during my time with him. Since that would be most of the time, I'm not sure what the difference really would be, beyond the way I'd have to word things when talking to STBXH about DS.
For that matter, what difference would it really make to him, either? Even if I did have sole physical and legal custody, I really would have very little veto-power over the way STBXH handled things during his visitation time, wouldn't I?
Also, I know there are varying degrees of joint legal custody. It's not all just 50/50. If I had, say, 75% legal custody and STBXH had 25%, wouldn't it still pretty much amount to my having primary decisionmaking abilities, and therefore might as well be sole custody?
I know these are questions that I should ask my lawyer, and I plan to. I just thought I'd get some perspectives on it where I wouldn't have to pay 30 gazillion dollars an hour to hear what someone had to say on the subject. :)
Any experience with any of these arrangements that you could share with me would be appreciated, also!
Thanks,
- HisMija

The difference varies according to jurisdiction. I have heard of parents who have joint legal custody, in places where the law gives the deciding vote to the parent who has the most time with the children. In a place like that, and IF your Ex doesn't want to spend a lot of money on contempt motions, then your suppositions are correct. All boiled down, there might be very little difference in the day to day workings.
But I don't know how it is where you are located.
>>>Also, I know there are varying degrees of joint legal custody. It's not all just 50/50. If I had, say, 75% legal custody and STBXH had 25%, wouldn't it still pretty much amount to my having primary decisionmaking abilities, and therefore might as well be sole custody?<<<
I have never heard of legal custody being apportioned based on percentages. You either have legal custody or you don't. You are most certain to get legal custody, joint legal would mean he has it too (you both have it), sole legal means it's just you. There are two main grey areas I am thinking of. One is that you can have joint legal but you get to break any ties. That is pretty much the same as having sole legal, because you have to consult him but you can still do whatever you want. Having joint legal where you have the final say still gives him more rights than you having sole legal. If he has joint legal and you disagree, he might have to live by your decisions but he would still have the right to make decisions for your child in an emergency (say you were both in a car accident and you were not concious), he would have the right to have access to your child's school records and could talk to the teacher even if you objected, and in some states it would mean he would automatically get temporary custody if something happened to you (permenant custody would need to be awarded by a judge). In some cases if dad has no legal custody, and something happened to you, the child would not just go to him, this is something to ask your attorney because you don't want your child in foster care just because dad has no legal rights. In some states it might not mean this, the child might go to the other parent regardless of legal custody status if the custodial parent is killed in an accident or something, so you have to find out for sure about your laws and how it would work. Also, joint legal gives him the right to go to court if he does disagree (even if you have tie breaker status) whereas having no legal custody means that no matter what you do, he can have zero say in real life or under the law. This pretty much makes him a non-parent which is why most states will not give sole legal custody to one parent unless it's proven that the other parent can't co-parent or will make harmful decisions regarding the child (like taking the child for unnecessary medical treatments or refusing necessary treatment, or something like that).
In some cases you can have joint legal but not have final say, so you have to come to consensus on any decision. This is what my ex and I have, we have to agree. It works for us because we are committed to doing that, and even if we have different views we would rather work it out between us than have a court dictate any decision to us related to dd. If we did object and could not agree, one of us could seek a court decision on the matter. I doubt that would ever happen.
Another grey area is that you could have sole legal and still voluntarily consult your ex. My mom did this. She could do whatever she wanted but she would still call my dad and ask his opinion when it came to major (and sometimes minor) issues. She viewed him as a parent, and regardless of what the legal documents said, she co-parented with him (when he was not high on drugs, the year he was in the mental institution being the exception to the rule, and of course all before he killed himself).
Physical custody can be apportioned based on percentages. It is fairly typical for mom to have sole physical and dad to have visitation every other weekend and one weeknight each week. If he has more than that, usually it's referred to as joint physical or shared physical (sometimes this means 50/50, sometimes it means some other shared % like 65/45 or any variation). If you have sole physical you are the primary caregiver, and if you have joint physical the parent with over 50% custody is considered the primary caregiver (so you could have 65% physical custody and still be the primary caregiver). Custodial parent and primary caregiver are pretty much interchangeable. I have 50/50 custody and we are both joint custodial parents, neither of us is primary. The terms and their meaning vary state to state, and it gets very cofusing as you can see. The best thing to do is ask your attorney about how it works in your state, and about the meaning behind the terms your state uses.