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Joseph E. Cordell Headshot

The Multiple Meanings Of Custody

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Having spent decades representing men in divorce, I have encountered all types of newly separated and divorcing fathers, from those licking their wounds after being blindsided with divorce papers to those confident they will know their way around a courtroom better than Lindsay Lohan.

But all these fathers typically have one trait in common: they habitually and dismissively refer to "custody" as a universal term for all things child-related in a divorce.

When most prospective Cordell & Cordell clients come in for a consultation, they know what kind of physical custody they are looking to enjoy with their children. Many though do not realize that physical custody is not the only form of custody.

Whereas physical custody refers to the amount of time each parent is permitted physically with a child, there is also legal custody that covers major decision-making responsibilities affecting the children, including religion, choice of schools, extracurricular activities, health care, etc.

There are basically three possibilities: sole legal custody to Dad, sole legal custody to Mom, or legal custody to Dad and Mom jointly.

The significance of legal custody is that the non-custodial parent -- deemed as the parent who has visitation rights or secondary physical custody of the children -- cannot be cut out of the decision-making process regarding any major issues involving the children.

One of our attorneys at Cordell & Cordell met with a father who was operating under a previous court order where he agreed to let his ex-wife have sole legal custody. When going through the divorce years ago, he thought it was a mere formality that the custodial parent (his ex-wife) would also be given sole legal custody so he didn't give the title a second thought.

Years later, that flippant decision still has rampant ramifications.

His ex-wife, well within her rights to do so as the sole legal custodian, enrolled their child in a parochial school that he could not afford. Not only did he belong to a different religion, he was also required to pay a portion of tuition, which nearly impoverished him.

The father's protest was futile because his ex-wife had sole legal custody granting her the sole authority to dictate major decisions in their child's life.

The importance of legal custody to fathers cannot be overstated. "Non-custodial parent" is practically a synonym for "dad" these days, as fathers comprise almost 83 percent of the nation's non-custodial parents, according to the U.S. Census Bureau.

Joint legal custody does give the non-custodial parent substantially greater leverage than he would otherwise have. By exercising his veto power, Dad can put the brakes on unilateral decisions Mom may be inclined to make respecting major issues.

As a result, if my client is not likely to obtain primary physical custody, I strongly encourage him to seek joint legal custody. In the absence of primary physical custody, joint legal custody becomes an important mechanism to prevent Mom from reducing Dad to a child support provider and occasional weekend babysitter.

Though most divorced dads may not have as much parenting time with their children as moms do, they need to ensure their legal rights as a parent are protected by securing joint legal custody and its requirement to involve both parents in decision making regarding the children.