Common Misconceptions in Child Custody – “Primary” Physical Custody

A big part of our mission at Foxtrot Family Law is to educate our community about the resources available to committed parents and caring relatives as well as correct common misconceptions about Child Custody and Co-Parenting.

Some of our favorite misconceptions are as follows:

– co-parents should work out informal agreements re: visitation rather than having clearly defined schedules and processes, i.e., as we understand it, they should “relitigate” visitation every day/week/holiday rather than have a Co-Parent User’s Manual (a good court order) that tells them exactly what to do, how to do it, where to be and when to be there;

– that if you don’t pay Child Support you don’t get your visitation, i.e., that you “pay to play” in Child Custody; and, today’s topic…

– “Primary Physical Custody” is a thing.

It’s not. It is not a thing…at least not in Alabama.

“This isn’t just a matter of taste…This is a real, practical issue on perhaps the most important part of your Child Custody and Co-Parenting situation.”

Both the statutes, (the law on the books that comes from the legislature), and the common law, (law that comes down from Appellate Courts, also called precedent), make it clear that anything other than Joint Physical Custody is called Sole Physical Custody, see § 30-3-151, Ala. Code 1975. The Court of Civil Appeals has reiterated and attempted to educate the trial courts (your local court in your county) regarding the proper terms and definitions. Green v. Green, No. 2160986, 2018 WL 2275739 (Ala. Civ. App. May 18, 2018) (link); Bardolf v. Bardolf, No. 2161041, 2018 WL 1663345 (Ala. Civ. App. Apr. 6, 2018). (link)

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If you’re wondering what the big deal between using the one term or the other is then here goes…

There is an undue stigma around the term “Sole Physical Custody” which makes it harder for lawyers and the Court to help people. And, more importantly, using whatever term in a willy-nilly fashion can create real conflict and ambiguity in your case, or even undermine or unravel or even void your entire order or whatever it is you’re trying to achieve for your family.

First, people hear the term “Sole Physical” and recoil at the way the term sounds. Fundamental lesson here: words don’t mean the same thing in the law as they do walking around on the street. We attach our own emotions and our own story to words and that can get us in trouble.

We’ve seen Agreements in the best interests of children fall apart or almost do so because someone had a such a negative reaction to “Sole Physical” Custody.

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Perhaps this is a solution, a better way to think about it. You either have Physical Custody or you don’t. If you don’t have Physical Custody but you still get to see your child on a regular basis then you probably have Visitation, not Physical Custody in any form or fashion.

Maybe the legislature should consider taking out the “Sole” which seems to rankle everybody.

Second, such as in the Green case mentioned above, there could have been real confusion when a trial court awards “Joint Custody” and then designates one of the parents as the “Primary Physical Custodian.” Look back at § 30-3-151 and you’ll see why these things inherently conflict. In the Bardolf cases even the Judges on the Court of Civil appeals couldn’t agree on what was going on:

“The judgments entered in the previous modification actions fail to use the custody terminology chosen by our legislature. Regardless, an express provision of the judgment in the .01 action reads: “Starting on August 1st of 2015, the parties shall have physical custody of the minor children,” and, thereafter, the parties shared alternating weekly custody for two years, which, according to prior opinions of this court, amounts to “a joint-physical-custody arrangement, as defined by § 30–3–151(3).” New, 955 So.2d at 436; E.F.B., 157 So.3d at 923. The award of “physical custody” to the parties altered the earlier award designating the mother as the “primary” physical custodian; therefore, unlike the main opinion, I conclude that, like in New and E.F.B., the McLendon standard has no application in this case.” Bardolf v. Bardolf, No. 2161041, 2018 WL 1663345, at *8 (Ala. Civ. App. Apr. 6, 2018)(emphasis added).

This isn’t just a matter of taste, as our lead trial attorney Josh and I often butt heads on. This is a real, practical issue on perhaps the most important part of your Child Custody and Co-Parenting situation.

Read and follow the manual, or at least make sure your Child Custody lawyer does.

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This article contains general information and should not be construed as legal advice for you or your unique situation. If you would like to speak more about how you, as a committed parent or caring relative, can be more effective in your Child Custody case, please visit www.ThinkFoxtrot.com/public_calendars/ to schedule your initial consultation at one of our offices. ~SW, Foxtrot