Summary:
In this divorce tip episode, I explain the difference between legal and physical custody, including the relationship of custody to child support. I also define parenting plans and the dispute resolution clause, and I outline the differences between major and minor decision making for co-parenting.
Show notes:
What is the difference between legal custody and physical custody? It depends on the state if this applies to you since this isn’t a distinction in some states. But for the states this does apply in, I want to explain the difference between the two.
Legal custody is the decision making regarding your children. In Utah, the presumption for legal custody in most divorces is joint legal custody. This assumes that you and your spouse are going to work together regarding the major decisions of your children. Major decisions are defined as decisions involved with religion, education, extracurricular, and medical. Anything not in those categories is considered a minor decision, and the parent with the physical custody of the kids that day can make that decision. In joint legal custody, the court requires you to create a parenting plan, which is a legal roadmap for how you and your spouse are going to co-parent your children after the divorce. It includes a dispute resolution clause so that when you and your spouse are unable to come to these major decisions regarding your children together, there is a set up process for what to do. It will outline 3–4 steps for what to do in those instances, such as talking with experts or going through mediation. Most major decisions are able to be made between co-parents without resorting to the dispute resolution steps, as long as the parents remember that they both share the same goal of wanting the best for their kids.
Physical custody is defined by how many overnights a parent has per year. To have joint physical custody, you only have to have 111 overnights (out of 365) per year to be considered a joint physical custodian of your kids. It could be 50-50 or 70-30 split or anything in between, according to the percentage each parent has within joint physical custody. So the terms like sole or joint physical custody don’t matter as much as how many overnights you actually have with your kids.
In Utah, the number of overnights you have directly correlates to the amount of child support you’ll pay or receive. In Texas, child support amount doesn’t correlate with the parent time, it’s only about income, so you’ll need to check in your state.