Foxtrot’s Editorial Comments on the “DR” Definitions of Child Custody

1. Never rely solely on subsection (1), “Joint Custody.” Always use some version of subsections (2)-(5). Subsection (1) may be on the books but it’s going to be confusing for everyone involved, including the Judge and especially the Other Side (who is known to leverage every ambiguity to his or her advantage). Always specify separately terms of Legal Custody and Physical Custody.

2. Regarding subsection (2), “Joint Legal Custody,” always specify who has a “tiebreaker” vote and do so for separate categories, e.g., especially those specified in the Code but also extracurricular activities such as sports, the arts, civic involvement, etc.

3. On “Joint Physical Custody,” one key to note is that “[j]oint physical custody does not necessarily mean physical custody of equal durations of time.” Work schedules or care for a newborn child should not necessarily preclude a parent from sharing Joint Physical Custody. One strategy we implement is seeking Joint Physical Custody of newborn children for fathers, even though a mother of a newborn child may be nursing. Then, the schedule can even out as the child ages.

4. Sole Legal Custody is rare and typically only occurs when one parent is “out of the picture” or has significant issues like criminal activity, drug use, mental/physical health problems, etc. The more typical course is to award Joint Legal Custody and give one side the “tie breaker” vote discussed above.

5. Sole Physical Custody is the gold standard. There is no such thing as “primary physical custody.” We discuss that at length in discussing Common Misconceptions in Child Custody. You either have physical custody, in joint or sole form, or you have visitation, period.

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