Child Custody at 30,000 Feet

The majority of family law clients reflexively state “full custody” or “50/50” when the topic of child custody arises in their family law matters. Family law attorneys then spend a good portion of time talking about the different types of custody and what is best for their client’s children because “full custody” or “50/50” may or may not be appropriate.

“Custody” refers to two types: legal and physical. Generally speaking, legal custody is the ability to make day-to-day decisions regarding a child’s health, education and welfare. With some exceptions best discussed with a family law attorney, most parents will generally share “joint” legal custody. Where the majority of ligation happens in child custody is in determining physical custody. When a parent has sole, or primary, physical custody, this means the child resides with that parent the majority of the time. If parents share physical custody, this means, roughly, that each parent has significant periods of time with the child.

Most family law clients fight over physical custody because they truly care about their children and want to spend as much time with them as possible; however, this is not always true. You see, calculation of child support is based on a complex mathematical formula that involves, more or less, taking into consideration both parents respective incomes relative to the percentage of time (physical custody) he or she spends with the child. Specifically, if stay-at-home Parent A has an 80/20 (80% of the time) physical custody schedule with full time working Parent B then Parent A will likely get more child support per month. If Parent A has a 50/50 (for example, one week on and one week off) physical custody schedule with full time working Parent B then Parent A will likely get less child support. Confused? Basically, and based on this example, the more time a higher earning parent has (Parent B) with a child the less will be the monthly child support payment.

The legal standard for initially determining who gets legal and physical custody of the children is “best interest,” which can be ascertained by asking some questions, such as: how old are the children, are you breast feeding, who usually takes care of the children in the morning, who takes care of the children during the day, who takes them to school and picks them up, who packs their lunches, who does their homework, who takes them to extracurricular activities, and, overall, how are the children doing? If you answered “I do” to these questions and your children are doing well, then maybe you are the parent who should get primary physical custody, and have the children the majority of the time, or vice-versa if you answered “the other parent does.” Remember, though, that custody arrangements are not set in stone and are subject to modification. Be mindful, however, that the standard to modify may be higher than “best interest” and require more supporting evidence, which means a greater level of difficulty.

    This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this blog should be acted upon without first consulting with an attorney. Should you have questions about the content of this blog, please arrange to discuss via a consultation.