Clearing Up Custody: Legal vs. Physical and Sole vs. Joint

There are a lot of misunderstandings that happen in conversations about custody. A large part of that it because people don’t really understand that ‘custody’ is not a complete legal concept in and of itself. Instead, it’s broken up into two parts: legal custody, and physical custody.

Physical Custody is the term used to describe which parent houses the child. Simple enough.

Legal Custody is the term used to refer to a parent’s right to contribute to important decisions in the life of their child.

But it’s important to note that these terms are not defined in the law directly. The only reference to these concepts within the actual statues is within MCL 722.26a, which defines “joint custody” as when “a child resides alternately for specific periods of time with each of the parents; or when the parents share decision-making authority as to the important decisions affecting the welfare of the child.” That is the origin of the physical/legal custody split in Michigan law.

Sole and Joint
Each of these kinds of custody can be either ‘sole’ or ‘joint.’ Sole custody simply means that only one parent has this kind of custody, and joint means they share it — but there’s a wrinkle. Physical custody is a ‘grey area’ insofar as it’s possible for two couples with identical visitation schedules to have two different kinds of physical custody. For example, one judge might call a “five days/two days” schedule a “joint custody” situation, and another might call the same schedule a “sole custody with two days’ visitation” situation. Other than that detail, here’s a breakdown of the kinds of mixed custody:

• Sole Physical and Legal Custody is relatively rare; the court assumes that contact with both parents is always in the child’s best interest unless one parent is actively threatening the health and safety of the child.
• Joint Physical and Legal Custody was “the norm” for years, but is going out of style. It simply means that the child spends an agreed-upon and theoretically-amount-equal amount of time with each parent, and both parents must agree on the ‘big questions’ before they move forward.
• Sole Physical/Joint Legal Custody is useful in situations where a parent is physically unavailable, but still able to contribute their opinion. For example: when one parent is incarcerated for a nonviolent crime, the free parent generally retains sole physical custody (for obvious reasons), but both parents are expected to contribute to the decision-making in the child’s life.
• Joint Physical/Sole Legal Custody used to be rare, but did happen — most often in situations where one parent is actively ‘poisoning the well’ out of spite for the other parent. If one parent argues against everything the other parent wants, not because it’s unreasonable, but out of simple hatred, a judge will often simply turn full legal responsibility over to one parent, but allow the other parent to have normal physical custody of the child. (Note that if the ‘other’ parent also starts brainwashing the child against the first, the judge will probably cease joint physical custody as well.)
• BUT! Joint Physical/Sole Legal Custody is starting to be the “new normal,” with a caveat. Many judges, in an effort to keep disagreements over ‘big issues’ from deadlocking a child’s life, have taken to awarding joint physical custody to ensure that the child maintains contact with both parents, but sole legal custody with the caveat that the parent who has sole legal custody consult the other parent and take their input into account when making decisions. This essentially recreates the effect of joint physical and legal custody but gives one parent the final say to prevent wasted court hours dealing with parents that are merely butting heads.

If you’re entering into a custody battle and you need some help navigating the muddy waters, call Gucciardo Family Law today at 248-723-5190 — we’ll be your guide.