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By Jan Grossman, Esq.
The first thing our family lawyers typically do when a new custody client consults with us is help the client understand the various terms used in custody court and in custody orders. For those of you considering custody litigation or just trying to figure out what your custody order means, here is a brief summary:
LEGAL CUSTODY – is the right to make major decisions about a child’s life. Major decisions include, but are not limited to medical, dental, schooling, religious education, mental health care, summer camp, some travel permissions, daycare and baby-sitting providers, input as to which adults reside in the same house with a child. A legal custodian typically has the right to be present at all health care appointments and all school meetings. Legal custodians typically have an absolute right to all health, school, religious and professional records. Remember, legal custody has nothing to do with the overnight schedule. There are two kinds of “legal custody:”
1. Shared Legal Custody – This is the order given by the court in over 90% of custody orders. It means that both parents have equal input into major decision-making and equal access to records and professional appointment s concerning the child. The court prefers shared legal custody between parents because it keeps both parents involved in their kids’ lives. Even if parents don’t get along or even hate each other, courts will insist on shared legal custody because the legal requirement for shared legal custody is only that parents can minimally cooperate.
2. Sole Legal Custody – This means that the one parent who is granted this right has all of the rights of legal custody to the total exclusion of the other parent. The parent who is excluded from legal custody typically has a history of violence to the other parent, current imprisonment, the subject of a restraining order or Protection from Abuse Order, chronic verbal abuse and/or non-cooperation. As one client put it, “You really have to be a &%^*$# to be excluded from legal custody.” With the bar for shared legal custody set so low, this statement is certainly true.
PHYSICAL CUSTODY – is the schedule decides where the child spends their overnights. Most physical custody schedules are laid out in fourteen day repeating schedules for the convenience of the parties and the child, but the law allows any schedule on which the parties can agree or which the court feels is in the child’s best interest. There are typically three types of physical custody:
1. Primary Physical Custodian – is the term used to describe the parent who has the most overnights with the child in any given period (typically two weeks). This would unusually (but not always) be the child’s school address.
2. Shared Physical Custody – is the term used when each parent is granted about 50% of the child’s overnights. The court typically grants this in situations where the parents live relatively close to each other and the child’s school, the child is bonded (or needs to be bonded) to both parents, the parents have some capacity to communicate, and/or this is the preference of a relatively mature child.
3. Partial Physical Custodian – is the term used to describe the parent who has anything substantially less than 50% of the overnights in a given custodial period. For instance whether a parent has 6 out of 14 overnights or 3 out of 14 overnights in a two week period, that parent is the partial physical custodian. A parent can have 0% of the overnights and only have day visits with their child and can still be called a “partial physical custodian” for the time with the child that they do have.
SUPERVISED VISITATION is the term used when the court believes that it would be in the best interest of a child to see a parent but not be alone with a parent without another “supervising adult” being around 100% of any visit to insure that the child is physically and emotionally safe during the visit. Parents who have a history of drug use, violence, mental illness, inappropriate behavior and lack of basic parenting skills fit in this category. Sometimes a court will order supervised visits when a parent cannot stop themselves from putting the other parent down to the child or putting the child in the middle of adult disputes. The supervisor appointed by the court typically falls into two categories:
1. Third Party Supervisor – is a friend or relative that all parties trust to manage the visitation. This party must agree to give their time on a regular basis, strictly follow the court order, and immediately stop the visit if the child is exposed to upsetting behavior on the part of the visiting parent. The supervisor will be specifically named in custody order. If that supervisor or another approved supervisor is not available, the supervised visit cannot take place.
2. Clinical or Institutional Supervisor – is a professional organization and/or mental health professional and/or security professional who will conduct supervision as paid by the courts or for a fee from the parties to conduct and supervise each visit. In Bucks County, two private organizations fill this function, “Kids First” and the “Assurance Group” in Doylestown; in Montgomery County, the Lincoln Center in Bridgeport, and in Philadelphia, the weekend court-sponsored visitation area at the Family Courthouse.
Wherever you live in the Bucks County, Philly, Montgomery County or New Jersey, WE CARE LEGAL is available 24/7 at 1-855-LAW-FAMILY to immediately handle all of your child custody, grandparent custody rights and adoption needs. Thank you for considering us. Jan Grossman, Esq.