The two sides of the custody coin

“Will I be able to get custody of my children?”

That’s how most parents still phrase the question to their lawyers. It’s a throwback to the era when one parent “got custody” and the other parent didn’t. End of discussion.

But times have changed, and involved and informed parents should consider asking different questions today.

Today, Florida and most states allow for (or, like Florida, favor) “joint custody” of children. In Florida, joint custody generally refers to joint legal custody, not physical custody.

What’s the difference? In the interests of brevity, the parent with physical custody actually has the child physically present with him or her.

In Florida, the child generally resides more of the time (if not most of the time) with the primary residential parent. The child may reside (or visit) the rest of the time with the secondary residential parent.

What most parents mean when they ask the question at the beginning of this message is

“Will I be able to get primary physical custody of my children and be their primary residential parent?”

Most parents facing divorce focus almost single-mindedly on who their children will live with after the divorce . They don’t give a thought to the currently abstract issue of legal custody.

Legal custody refers to decision-making for and about the child. Not usually the routine day-to-day decisions (like, which cereal to eat for breakfast) but the significant decisions (like, whether to take medication for hyperactivity or whether to have an elective orthopedic surgery now or later).

Legal custody or decision-making authority is important. In some cases, depending on the personalities involved, the time may come when joint legal decision-making may seem as concrete as a wall or a brick.

In certain cases, a divorced parent may end up regretting not considering their legal position on legal custody at the time of divorce as carefully as they considered their legal position on physical custody.