Legal ramifications of sole vs joint physical custody

[midad8]

What is the name of your state (only U.S. law)? MI

Hi everyone, I am in the middle of a "friendly" divorce where my spouse and I pretty much agree on everything. I have tentatively agreed to joint legal custody and sole physical custody. However, we have also agreed on a parenting schedule where she gets the kids 60% of the time every two weeks (alternating weekends). We have been successfully implementing this schedule for the past 3 months. Also, the kids go to my spouse's school district and she covers the medical and childcare bills. I will pay her back my portion of the costs through child support.

Before I sign off on the final divorce decree though, I want to make sure I am not losing something if I agree to giving her sole physical custody. Her attorney who has been filing the paperwork and my attorney (limited over the phone consultation only) both say it doesn't really matter the legal term we will be using as long as the enforced parenting schedule gives me the 40% time we agreed to.

Thus, I don't quite understand why there needs to be a distinction made between sole vs joint for physical custody if the parenting schedule is what gives me time with my kids. What really are the legal rights or influence or freedom I am giving up (or gaining) down the road if I agree to sole maternal physical custody on the final decree?

Thanks for your feedback.

 

[LdiJ]

What is the name of your state (only U.S. law)? MI

Hi everyone, I am in the middle of a "friendly" divorce where my spouse and I pretty much agree on everything. I have tentatively agreed to joint legal custody and sole physical custody. However, we have also agreed on a parenting schedule where she gets the kids 60% of the time every two weeks (alternating weekends). We have been successfully implementing this schedule for the past 3 months. Also, the kids go to my spouse's school district and she covers the medical and childcare bills. I will pay her back my portion of the costs through child support.

Before I sign off on the final divorce decree though, I want to make sure I am not losing something if I agree to giving her sole physical custody. Her attorney who has been filing the paperwork and my attorney (limited over the phone consultation only) both say it doesn't really matter the legal term we will be using as long as the enforced parenting schedule gives me the 40% time we agreed to.

Thus, I don't quite understand why there needs to be a distinction made between sole vs joint for physical custody if the parenting schedule is what gives me time with my kids. What really are the legal rights or influence or freedom I am giving up (or gaining) down the road if I agree to sole maternal physical custody on the final decree?

Thanks for your feedback.

I agree with the attorneys. The important thing is the joint legal custody and that you have an enforceable timeshare. There really isn't anything that you are "giving up".

 

[WittyUserName]

This has come up on this forum before, and it is a little hard to understand. However; your attorney is likely right. There really isn't much practical difference in terms of sole physical vs joint physical. Joint legal is important, because you want to be able to help make decisions, and a clear timeshare schedule is important so you'll both know when the child is supposed to be where - but I don't see where you are giving up anything by using this terminology.

I would encourage you to NOT get hung up on the wording if there isn't a practical difference. And kudos to you and Mom for having what sounds like a pretty successful discussion about how to handle these details. Good job, Dad. Your child is very very lucky.

 

[midad8]

Thanks for the replies. I will try not to get caught up in the legel terms and continue to concentrate on what's important...spending time with my kids. However, are there any implications of sole vs joint physical custody on the 100 mi relocation limit? I read somewhere that if my spouse has sole custody, she can't move away more than 100mi without the court's approval. However, I am free to move anywhere because I don't have physical custody. If I had joint physical custody, I have the same limitation as well. Is that true?

 

[stealth2]

Well... how would you propose to split your kids' time 50/50 if you live that far apart?

 

[WittyUserName]

Thanks for the replies. I will try not to get caught up in the legel terms and continue to concentrate on what's important...spending time with my kids. However, are there any implications of sole vs joint physical custody on the 100 mi relocation limit? I read somewhere that if my spouse has sole custody, she can't move away more than 100mi without the court's approval. However, I am free to move anywhere because I don't have physical custody. If I had joint physical custody, I have the same limitation as well. Is that true?

Interesting question. Are relocations addressed elsewhere in your order?

I did find this, but it only mentions sole legal custody.

Michigan Legislature - Section 722.31


722.31 Legal residence change of child whose parental custody governed by court order.

Sec. 11.

(1) A child whose parental custody is governed by court order has, for the purposes of this section, a legal residence with each parent. Except as otherwise provided in this section, a parent of a child whose custody is governed by court order shall not change a legal residence of the child to a location that is more than 100 miles from the child's legal residence at the time of the commencement of the action in which the order is issued.

(2) A parent's change of a child's legal residence is not restricted by subsection (1) if the other parent consents to, or if the court, after complying with subsection (4), permits, the residence change. This section does not apply if the order governing the child's custody grants sole legal custody to 1 of the child's parents.

(3) This section does not apply if, at the time of the commencement of the action in which the custody order is issued, the child's 2 residences were more than 100 miles apart. This section does not apply if the legal residence change results in the child's 2 legal residences being closer to each other than before the change.

(4) Before permitting a legal residence change otherwise restricted by subsection (1), the court shall consider each of the following factors, with the child as the primary focus in the court's deliberations:

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent's plan to change the child's legal residence is inspired by that parent's desire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child's schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

(5) Each order determining or modifying custody or parenting time of a child shall include a provision stating the parent's agreement as to how a change in either of the child's legal residences will be handled. If such a provision is included in the order and a child's legal residence change is done in compliance with that provision, this section does not apply. If the parents do not agree on such a provision, the court shall include in the order the following provision: “A parent whose custody or parenting time of a child is governed by this order shall not change the legal residence of the child except in compliance with section 11 of the “Child Custody Act of 1970”, 1970 PA 91, MCL 722.31.”.

(6) If this section applies to a change of a child's legal residence and the parent seeking to change that legal residence needs to seek a safe location from the threat of domestic violence, the parent may move to such a location with the child until the court makes a determination under this section.

 

[gam]

As long as you have joint legal, then the 100 mile rule applies. If mom has sole legal, then she can move within Mi as far as she wants without you or the courts permission. However even with sole legal to move out of state she would need either your permission or the courts.

It's not physical custody that applies to the 100 mile rule, it is legal custody that applies. So do not agree to her having sole legal, in Mi it is rare that the NCP does not get joint legal through the courts.

If you have joint legal, then neither party can move more then 100 miles from the child's legal residence. The child's legal residence with joint legal, is both your address and moms address at the time the order is made. Both parties in joint legal, need either the other party's permission or the courts permission to move more then 100 miles.

The 100 mile rule is based on the legal custody.

 

[midad8]

Thanks again for the replies! We have not received any orders yet as the divorce is not finalized. But if what is stated in your replies will be in the court order, I am not concerned since I will have joint legal custody. Besides, I have no intention of moving 100+ mi away form my kids. I was just wondering if there is any difference in practical application between sole and joint physical custody, and it sounds like no. I'm confused as to why there is even that distinction made on paper anyways. This is why I didn't go into law.

 

[WittyUserName]

Thanks again for the replies! We have not received any orders yet as the divorce is not finalized. But if what is stated in your replies will be in the court order, I am not concerned since I will have joint legal custody. Besides, I have no intention of moving 100+ mi away form my kids. I was just wondering if there is any difference in practical application between sole and joint physical custody, and it sounds like no. I'm confused as to why there is even that distinction made on paper anyways. This is why I didn't go into law.

Truer words - that whole business is different in every state, too. Which is why it can get even more confusing for a forum like this.
Best of luck to your children, who are very lucky to have parents that are working it out amicably.

 

[gam]

Thanks again for the replies! We have not received any orders yet as the divorce is not finalized. But if what is stated in your replies will be in the court order, I am not concerned since I will have joint legal custody. Besides, I have no intention of moving 100+ mi away form my kids. I was just wondering if there is any difference in practical application between sole and joint physical custody, and it sounds like no. I'm confused as to why there is even that distinction made on paper anyways. This is why I didn't go into law.

Nope no difference in physical custody on the move away rule. When this divorce and order are final, the addresses you both are using will be the legal addresses of the child. Even though you have no plans of moving over 100 miles, mom could want to at some time. So the joint legal and the addresses at the time the order is final, will be very important.

You said you would be having the kids 40% of the time. Check out the Mi CS formula, because the amount of overnights is considered. Don't know how much of that 40% is overnights, but you should check this out.

Also in Mi you can get an abatement of 50%, anytime you have the kids for more then 6 overnights in a row. However the abatement needs to be in your order, so you should get that in this order before it is final. Even if you just have standard summer time and holiday this will add up. Standard is usually 2 or 3 weeks in summer(depends on county), there is Christmas, which every other year you should be getting the Christmas eve until the day before school resumes, which makes more then 6 overnights, winter break(some districts in Mi have over a week off), and Easter break every other year, again more then 6 overnights.

Sole Legal and Sole Physical Custody: This means that the children live primarily with one parent, and that parent is responsible for making both major decision and routine decision regarding the children.
• Joint Legal and Sole Physical Custody: Joint legal custody means that the parents will communicate and cooperate with one another and attempt to reach mutual decisions regarding major issues affecting their children which include, but are not limited to, major medical decisions, educational decisions, and religious upbringing, if any. The parent awarded sole physical custody is responsible for making the routine decisions affecting the daily care and maintenance of the children.
• Joint Legal and Joint Physical Custody: As above, joint legal custody means that the parents will communicate and cooperate with one another and attempt to reach mutual decisions regarding major issues affecting their children. Joint physical custody means that an order of the court states that the children live with one parent part of the time, and the other parent part of the time. The time with each parent does not have to be equal. The parent who has care of the children at any given time is responsible for making the routine decisions affecting the daily care and maintenance of the children.

The quoted text I took from my county's FOC handbook, gives an explanation on the different custody's. The difference between sole physical and joint physical seems to be who is in charge of making the routine decisions affecting the daily care and maintenance of the children. Read the 2 parts I bolded.

Just some things you should be discussing with your lawyer, or further looking into yourself. I would not want to be giving up my decision making rights on daily care and maintenance when the children are in my home. I have personally viewed a lot of orders from 4 different Mi county's. None of them said sole physical custody. The ones that are true 50/50 split time, say joint physical. The others say joint legal, with the CP listed as primary residential, this still gives the NCP the right to make decisions on daily care and maintenance when the children are with the NCP. So I would make sure that by it saying sole physical you are not giving up this right.

 

[midad8]

Nope no difference in physical custody on the move away rule. When this divorce and order are final, the addresses you both are using will be the legal addresses of the child. Even though you have no plans of moving over 100 miles, mom could want to at some time. So the joint legal and the addresses at the time the order is final, will be very important.

So I should make sure there will be two addresses for the kids because of joint legal custody even though the physical custody may be sole maternal?

You said you would be having the kids 40% of the time. Check out the Mi CS formula, because the amount of overnights is considered. Don't know how much of that 40% is overnights, but you should check this out.

Yes, the child support will be adjusted based on the 60/40 split.

Also in Mi you can get an abatement of 50%, anytime you have the kids for more then 6 overnights in a row. However the abatement needs to be in your order, so you should get that in this order before it is final. Even if you just have standard summer time and holiday this will add up. Standard is usually 2 or 3 weeks in summer(depends on county), there is Christmas, which every other year you should be getting the Christmas eve until the day before school resumes, which makes more then 6 overnights, winter break(some districts in Mi have over a week off), and Easter break every other year, again more then 6 overnights.

We already have a parenting schedule worked out for 2011 that will be part of the final settlement. I will essentially get the kids 6 nights every two weeks and she gets 8 nights. X-mas break is the only time we left open right now. Do I still need to get some kind of abatement in the order?

The quoted text I took from my county's FOC handbook, gives an explanation on the different custody's. The difference between sole physical and joint physical seems to be who is in charge of making the routine decisions affecting the daily care and maintenance of the children. Read the 2 parts I bolded.

Just some things you should be discussing with your lawyer, or further looking into yourself. I would not want to be giving up my decision making rights on daily care and maintenance when the children are in my home. I have personally viewed a lot of orders from 4 different Mi county's. None of them said sole physical custody. The ones that are true 50/50 split time, say joint physical. The others say joint legal, with the CP listed as primary residential, this still gives the NCP the right to make decisions on daily care and maintenance when the children are with the NCP. So I would make sure that by it saying sole physical you are not giving up this right.

Just to rephrase, sounds like I have two options:
1) Ask for joint physical custody
2) Agree to sole physical custody, but with verbage in the settlement saying CP is primary residential only, and that I will have the right to make decisions on daily care and maintenance when the children are with me.

BTW, I have a limited legal plan from work where I only get phone consultations. Lawyers have not called me back, and the one that did seemed a bit wishy washy on his advice. I am finding more knowledgeable and helpful people in this forum, so thanks for all the help!

 

[LdiJ]

So I should make sure there will be two addresses for the kids because of joint legal custody even though the physical custody may be sole maternal?


Yes, the child support will be adjusted based on the 60/40 split.


We already have a parenting schedule worked out for 2011 that will be part of the final settlement. I will essentially get the kids 6 nights every two weeks and she gets 8 nights. X-mas break is the only time we left open right now. Do I still need to get some kind of abatement in the order?


Just to rephrase, sounds like I have two options:
1) Ask for joint physical custody
2) Agree to sole physical custody, but with verbage in the settlement saying CP is primary residential only, and that I will have the right to make decisions on daily care and maintenance when the children are with me.

BTW, I have a limited legal plan from work where I only get phone consultations. Lawyers have not called me back, and the one that did seemed a bit wishy washy on his advice. I am finding more knowledgeable and helpful people in this forum, so thanks for all the help!

Re the bolded:

As long as you have joint legal custody you do not need any of that verbiage. That is what joint legal means. It means ordinary dad to day decisions are made by the parent during their time, and major decisions or decisions that effect both parent's times are made jointly.

 

[TinkerBelleLuvr]

Michigan is doing away with abatements in the new orders. Instead, they make child support reflect it by annualizing it. If you do get it in your order, pay attention to the deadlines necessary to filing for it.

 

[TinkerBelleLuvr]

You are pretty close to joint physical custody based on the 60/40. In reality, it doesn't make that much difference except in the parents' heads.

 

[TinkerBelleLuvr]

Joint Custody - There are two types of joint custody that may exist together or be combined with another custody arrangement:
Joint legal custody: The children live primarily with one parent, although both parents participate in major decisions affecting the children.
Joint physical custody: The children live with each parent for extended periods.

http://courts.michigan.gov/scao/resources/publications/manuals/focb/focb_hbk.pdf

http://courts.michigan.gov/scao/resources/publications/manuals/focb/pt_gdlns.pdf

both good reading