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Types of Physical and Legal Custody - Legal Custody I

The Types of Physical and Legal Custody, What the Language May Mean, and Confusion Over the Basis for Modification: Part I of II – Legal Custody

Few things domestic attorneys observe in daily practice, including Ciyou & Dixon, P.C. attorneys, pull at the heartstrings more than a child caught between two well-intentioned parents in a bitter custody dispute. It is for this reason that child custody lawyers, evaluators, and judges use wide variety of words to parcel out legal custody (and physical) with some precision at times.

Sometimes as successor counsel, or just a friend reading another friends divorce paperwork, it is easy to wonder why so many words are used to relay a specific legal concept as it relates to custody. Semantics is the study of the meaning of language, and the multi-faceted meanings of “custody decrees” reflect this and the many meanings they may convey. Understanding this will make you a more effective client and advocate for your child.

Here is an example on point. Is the language, “Father shall have sole legal custody of the children” different from “Father shall have sole legal custody of the children, but shall consult with Mother on these decisions.” The answer is “yes” and “no”. Yes, Father makes decision. But it is almost a certainty that this Mother would not agree to have that language removed for simplicity.

Why? Because of its acknowledgment the Mother has the right (and Father has the duty to convey) to be informed about these matters (health, education, and welfare of the children as it relates to major life decisions), and, thereby, be an engaged parent in the rearing of the children. Moreover, where there is fundamental disagreement on best interests grounds, Mother may timely take the matter to court.

Thus, legal custody is much more than just making a decision from a global perspective. By comparison, as telephone contact is not parenting time in a strict sense, it is just as much a part of the non-custodial parent having parenting time with his or her child as it is for the non-custodial (legal) to be contemporaneously informed about legal decisions. These both keep the parent connected with the child viz-a-vie these rights.

It is not surprising these are complicated legal concepts, given a real living-breathing child connected with the rights that each parent loves and wants time with. Thus, the parents and their counsel, along with the courts and other professionals, wordsmith and hone the language to a great degree to invoke as much protection for the whole bundle of legal concepts associated with legal custody as they can for the parents.

Ultimately, legal custody decisions will be joint or sole as a point of departure, with corollary rights addressed, such as timely notice in the above noted example. These corollary rights should not be thought of as less important, although they (may greatly) complicate the matter and ultimately the language employed. These corollary rights are part of the multi-dimensional part of the legal concept of legal custody. Hopefully, this example and analysis sheds some light on the rather opaque nature of legal custody.

Within this mix, legal custody is sometimes divided between parents by specific category. For example, two parents who have fundamental, but different religions, may be unable to agree (or be rational) as it relates to religious training and up-bringing. They may be awarded joint legal custody in other categories, but one parent may be given sole legal custody to make religious decisions. Without this, the parents would be in court all of the time on modifications and contempts (and sometimes still are).

Although this may seem odd, it really is not. If the parents can work together, this is inherently in their child’s best interests (barring some agreement to a practice that might be neglectful). Therefore, it is their right to share legal custody to the greatest extent possible, even if it has to be so subdivided. On other factors, such as major medical treatment, the parents probably can work together; and if so, this is what the court is likely to order to avoid impermissible state interference into either parents right to raise his or her child.

Finally, a concept that sometimes trips up parents is modification of legal custody. As advocates defending against modifications of legal custody, we have observed litigants unable to articulate a precise legal custody matter on which they cannot work together and reach agreement. Instead, when distilled, the argument is physical custody and parenting time disputes being equated to one in the same with legal custody decisions. For this reason, the parent seeking modification cannot demonstrate a substantial change and that it is in the child’s best interest that legal custody be modified.

This frames legal custody in Indiana. We as advocates hope this increases your knowledge of the topic and, correspondingly, de-escalates any dispute you may have based on the imprecise understanding of the legal concept of legal custody. If so, you are a more educated consumer and this blog post has met its educational objective. This blog post is written by Bryan L. Ciyou, Ciyou & Dixon, P.C. Ciyou & Dixon, P.C. advocates practice throughout the State of Indiana.


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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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Based in Indianapolis and founded in 1995, Dixon & Moseley, P.C. is a niche law firm focused on successfully dealing with the complexities of divorce, high-conflict child custody and family law. Known for their ability to solve extremely complex situations with high quality work and responsiveness, Dixon & Moseley, P.C. will guide you every step of the way. The family law attorneys at Dixon & Moseley, P.C. will help you precisely identify your objectives and the means to reach your desired result. Life is uncertain. Be certain of your counsel. Indianapolis Divorce Attorneys, Dixon & Moseley, P.C.

Indianapolis Divorce Attorneys, Dixon & Moseley, P.C. of Indianapolis, Indiana, offers legal services for Indianapolis, Zionsville, Noblesville, Carmel, Avon, Anderson, Danville, Greenwood, Brownsburg, Geist, Fortville, McCordsville, Muncie, Greenfield, Westfield, Fort Wayne, Fishers, Bloomington, Lafayette, Marion County, Hamilton County, Hendricks County, Allen County, Delaware County, Morgan County, Hendricks County, Boone County, Vigo County, Johnson County, Hancock County, and Tippecanoe County, Indiana.