Types of custody explained
Too often I heard people say that they want a certain type of custody with their child yet they mix or misuse the terminology. This is especially true of those that claim that they want to change the law and are trying to present requests for change to legislators.
What I want to do is break down the different terms and explain them in legal terms as to what they mean so that the definitions are easily understood by everyone. In doing this the goal is to bring everyone to a full understanding of the confusion that they sometimes place when presenting the issue to others.
Sole custody is a type of custody where the courts place full legal and physical custody of the child with one parent. In doing this they have limited the rights of the other parent severely.
These types of plans may allow for visitation even though the non-custodial parent has no right to participate in any legal decision making in the raising of the child. Their time spent with that child may be limited to minimal contact or prevented completely. Often this is done by the Courts because of an identifiable or perceived defect of the parent whose rights have been limited.
Before the creation of shared parenting laws, every court had what was labeled a “Standard Order of Visitation”. These were usually found within the local rules of the Court and spell out what the Courts determined what the minimum time that the non-custodial parent was to have in visitation with their child post-decree.
These plans define what times and what days a non-custodial parent is to spend with the child. They will also show how the Court feels that significant Holidays should be divided between both parents.
The legal decision making that is required for the raising of the child under these plans is given totally to the custodial parent thereby giving the non-custodial parent not able to participate in those decisions such as schooling and medical decisions.
Often the Courts now disguise these as so-called shared parenting plans to make it appear as though they are awarding a division of the rights of the child.
Shared Parenting/Joint Custody
The term shared parenting came into popular use in the 1980s as laws were created that permitted the use of parenting plans[i] that were different than standard visitation plans of the past. Do not become confused in the use of this term as it does not guarantee that those rights will be divided in an equal manner and that each parent will have an equal say in the legal decision making in the life of their child.
Shared parenting is very much a misnomer term. While it sounds good and indicates to those not knowing that they will be sharing in all aspects of the raising of their child post-dissolution of the relationship it can be far from that in reality. As the laws of states have moved towards the permitting of shared parenting or agreement other than the old standard visitation, often those old standard visitation plans have become relabeled as shared parenting, as I have cautioned before.
A plan may be labeled as shared parenting yet still limit the rights of the non-custodial parent in many ways. They can be far from what many do desire as equal in all terms of rights and often parents are talked into accepting these plans only to find out that their rights have been limited as to when they can spend time with a child and as to when they may spend time with their child.
Shared parenting plans as use now with spell out the times that each parent has with the child and what the legal decision making is when they are with the child. Technically a shared parenting plan can and often still does severely limit access to the child in many ways.
Many states have issued what they label as Parenting Time Guidelines that spell out what they believe to be proper in the amount of time that a non-custodial parent should spend with a child. In reviewing the Ohio Parenting Guidelines as developed for the Ohio Supreme Court we see a supposed “best interest of the child” standard applied in such a way as to limit the time that a non-custodial parent has with their child based solely on the age of the child. While these guidelines often increase the amount of time the non-custodial parent has with the child as the age of the child increases it is still far from an equal division of time and legal rights in the raising of the child.
Guidelines such as these have been developed by social workers based on their thoughts as to how much time is desired for each parent's influence on the behavior and upbringing of the child and are far from reflective of the influences of both parents in an intact family. This is a form of what we label as “social engineering” that has caused many of the current societal problems that exist today.
This not to say that parents can't negotiate a plan that best fits the needs of the family under so-called shared parenting laws. The desire to make that possible is contained within all state laws but only if the parents agree to such a plan or if the Courts deem that such a plan is in the “best interest of the child” before them.
The reality is that shared parenting laws as they exist contain no set definition of what shared parenting is or should be post-dissolution of the personal dissolution of an adult relationship.
Equal Legal and Physical Custody
In terms of legal definition, this is the proper terminology to use when approaching a “shared parenting” plan. This term defines that all rights as to the visitation and legal decision making of the child shall be divided as close as possible between the two parents. Time is divided as close as possible to equally between the parents and the legal decision making of the parenting is done in the same manner. Often oppositional groups to these type plans or laws will attempt to apply mathematical definitions rather than the legal definition of equal, especially when discussing this with legislators.
Legal equality is not always equal in a mathematical sense. Mathematically ten divided equally will always produce two equivalent parts of five. Legal equality is a bit fuzzy and is truly more about providing that each person is afforded equivalent opportunities under the law.
A man that is 6 foot 6 inches and weighs 250 pounds is far from mathematically equal to a woman that is 5 foot 2 inches and 125 pounds yet the 14th Amendment of the Constitution is written to protect each in the same manner under the law. The 14th Amendment is often misinterpreted by many as requiring that everyone is treated equally when in reality the intent is to provide “equal opportunity” under the law.
Equal legal and physical parenting plans will spell out a division of parenting time with the child in such a manner as to divide that time as close to physically possible while it may not break down to an exact numerical division of time. A week on week off plan does produce an equal division of weeks per year in that type of plan but it does not produce an equal number of hours or days as the calendar has 52 weeks but does not produce an equal division of the number do actual days contained within the years. Yet throughout the parenting plan’s lifetime will produce an equivalent amount of time for both parents.
While many go to lawmakers asking for “shared parenting” laws they are using improper terminology. Throughout the United States, every state does have shared parenting laws on the books. What the states do not have are “equal legal and physical opportunity law”s or so-called shared parenting law with a defined default division of rights between parents. Until the laws of the states are created with a defined default position we will as a Nation continue to fail in protecting the best interest of our children.
That is the sole goal of the creation of new laws and the use of proper terminology in talking with lawmakers or in creating your parenting plan under current law is paramount to the success of any change in your state if that is to occur. Drop the term shared parenting from your everyday use and use “Equal Legal and Physical Custody” in its place when you speak to a legislator. By doing so you will define exactly what you desire the result to be.
Misused Terms and Proper Terms to Remember
Presumptions of Shared or Equal Custody
Nothing ruffles my feather more than seeing someone say that laws should be changed to a presumption of shared parenting or a presumption of equal custody. In a careful review of current laws from across the nation, we have found that the majority do contain a presumption of shared parenting or a presumption of equal custody. Presumptions are not a guarantee of an equal result or an equal opportunity of equal legal and physical custody. A presumption only states that is it presumed that the result is what the law should follow.
Presumptions are what has gotten so many into the current unequal and often biased results that exist today. These presumptions are what has allowed for the removal of fit parents from the lives of their children. Presumptions have no defined standard of law.
Drop the use when talking with a legislator.
Fit Versus Unfit
We often use the term of a fit parent when approaching legislators about legal changes and reforms to family law. Many questions and have asked us to define what a fit parent is. The easiest explanation of fit is to look at the terminology of determining what an unfit parent is.
An unfit parent is one that causes physical harm to a child through neglect or acts of physical abuse. State laws and procedures clearly define the limits of what these acts are that are harmful to a child. Under the law, the legal finding that parent is unfit is guided by strict scrutiny or very close examinations of facts. A finding of neglect or abuse can result in the termination of a parent’s rights in an abuse and neglect case but those decisions must be determined by the evidentiary standard set forth and defined in the USSC case Santkosky V. Kramer. Under the definitions of the USSC only a finding by “clear and convincing evidence” can be used it terminating a parent’s rights. We hold that the same standard of review must be used in defining the rights of a parent post-dissolution of a personal relationship such as the break-up of a marriage. The use of that standard of review will easily solve the removal of fit parents from the lives of their children.
Clear and Convincing Evidence versus Preponderance of Evidence
Current law allows for a Court to determine the visitation rights of both parents by a preponderance of the evidence. A preponderance does not require that a Court make their determination based on fact but only on the method by which the story has been presented to the person hearing that “facts”. It allows for dramatic stories of alleged defects rather than proven defects of a parent before that Court.
The higher standard of review of clear and convincing evidence requires that the court examine all provable facts and defects before it, not dramatically told stories. The use of this standard of review assures that a Court does not limit the rights of a parent without due cause or proof that a parent has a defect that is such that it must be corrected before they should be allowed to be an equal participant in the life of their child in the future.
The use of this higher standard of review also assures those false allegations cannot be used as a method of limiting the rights of either parent. This change is supported by USSC decisions and should be a requirement in discussing changes to any family law reforms in a state.
In conclusion, it should become clear that the use of certain terms needs to be stricken from the language of any group or person that is working for changes to current “shared parenting” laws. The use of bad terminology has caused delays in reform that is necessary to protect the rights of both parents and the child. That rethinking has to come from every advocate as they speak with lawmakers. Without the proper use of the correct legal terminology, we will continue to see infective laws passed that do little to nothing to guarantee positive results for all parties concerned.
Should you have further questions please use our contact page so that we can assist you.
See more from us about Clear and Convincing vs Preponderance as the correct evidentiary standard of review for all custody determinations.
Ray R. Lautenschlager
National Legislative Director
Ohio Family Rights
[i] Ohio law first used the term joint custody in 1982 and the term shared parenting entered in 1984.