With respect to divorce actions and paternity actions, a court must determine which parent or both should have both legal and physical custody of a child, or children. Physical custody involves where the child sleeps the majority of the time (which parent the child is living with primarily and physically with). Legal custody is generally defined as decision-making regarding the main issues of education, medical issues, and religion of the Child.1
The parents can agree to which parent (or both) have legal and/or physical custody, or if the parents cannot agree, a court will decide. Legal and physical custody can be sole, primary, or joint, and they can be mixed and matched. Thus, the parents can share joint legal custody, which means they both have a right to make major life decisions, such as where a child will attend school, what religion the child will be brought up in, etc. If parents share joint legal custody, they must work together. However, legal custody may be placed solely in one parent or the other when and if the parents cannot agree to a point where the disagreements harm the child, or one parent is not suitable to be making major life decisions for the child.
If the parents share joint legal custody, it does not necessarily mean they have joint physical custody. Thus, parents can have joint legal custody, but Mother, for example, may have primary physical custody and Father receives parenting time (usually every other weekend and one day a week, but same can vary given the parent’s agreements or work schedules).
When parents reach an agreement, or a court issues orders regarding custody, the agreement or order will use these qualifying words, such as “joint legal custody” and “primary physical custody.” These words have meanings, and imply certain rights to each parent. Thus, these words cannot contradict the actions.
For example, if the parents share joint physical custody (where the child is physically living and sleeping) the words infer that the child lives in either parent’s house half time. Thus, if an order or agreement of the parents states “joint physical custody” but describes that the child is living with Mother, and Father has every other weekend visits, and one day a week visits, the actions and the words conflict, and in practice, the Mother really has primary physical custody. The conflicting actions and words can have very practical and real life consequences. The parents could be confused about how to exercise sharing parenting time, a court later down the road could be confused as to how to modify or enforce parenting time and custodial arrangements, if the parents need state aid a conflicting order may preclude them from being able to apply for the aid, etc.
While parents, especially divorce cases where both parents are used to living with the children day in and day out, may want to share joint physical custody, that may not always be practical for the child, or in the child’s best interests. It may be hard for a parent that once had day to day interactions with their child to say the other parent has primary custody and they only have visitation. However, placing the words “joint” in an agreement or order to appease a parent such that they can say “I have joint custody” when in reality and practice they do not, can have unintended consequences. Thus, it is especially important to understand the meanings of joint, primary, or sole when it comes to physical and legal custody, as they have meanings attributable to actions, and the actions and words must match in order to avoid ambiguity and vague agreements and orders that are hard to interpret and follow.
We hope that this blog post has been helpful in understanding the definition of custody, and why agreements and orders must use the correct terminology to define the parent’s actions. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by attorney, Lori Schmeltzer.
- See generally, Ind. Code §31-17-2-13, §31-9-2-67, and §31-17-2-15
