Lots of parents get worked up about custody labels. And that concern is completely understandable because it's your child. In fact, clients often start out saying, "I'm not agreeing to anything but sole custody." Most people believe that joint custody means that the parties have equal time with the children, and no one has to pay child support. But that simply isn't true. Custody labels are just that - labels. It is important to have the proper wording to identify and enforce your parental and visitation rights in your custody agreement.
Make no mistake: it is really difficult to understand that a court "awards" custody of YOUR child, the one you helped raise, and love, and protect with all your heart and soul, to either you, the other parent, or to you both, jointly. That concept is tough for anyone to swallow.
But, the truth is this: there are three levels of custody, and they can be mixed and matched.
Sole custody means that one parent has complete control over the children's education, medical treatment, and religion.
Joint custody means that both parents have the decision making power over the children's education, medical treatment, and religion.
Shared custody (rarely awarded) is when two parents live very near to each other, and the child lives equally at both residences. This means that each parent has a complete room, and all the amenities for the child, and that neither party receives child support.
As I said, this is RARELY awarded for two reasons: 1) the parents must be wealthy to afford the same amenities; and 2) the child will constantly be moving, and will never have one place to call home. That sounds great until you have a teenager who constantly "forgets" and leaves school books at the other parents' home, and realizes this, only at 10:00 p.m., when the other parent is likely already in bed. (And, yes, that really happens.)
Keep in mind that the courts can only award what is labeled "joint custody" or "shared custody" if the parents get along and communicate extremely well. If the two of you have filed motions, or testified that you do not get along, and cannot communicate easily, the court is prohibited from labeling your custody agreement "joint custody."
I have a number of clients who want "joint custody" but cannot talk with their ex without a fight. In that instance, there is no joint parenting agreement, but the terms of the "joint parenting" agreement are written into the Marital Settlement Agreement without using that label. In those cases, one parent is labeled the "primary custodial parent," or "residential custodial parent," while the other parent is labeled the "non-custodial parent."
In these instances, the Marital Settlement Agreement will simply state that one parent is the residential custodian or primary custodian, and identify the other parent as the non-custodial parent. This type of agreement contains all the details to address how the parties will share decisions about the child(ren)'s medical care, religious upbringing, and educational needs.
So, remember: it is just a label. So make sure that your Marital Settlement Agreement identifies and protects your legal rights as a parent. The Agreement must include all the details regarding custody and visitation specific to your case. This is very important to help reduce miscommunication (read: arguments) and confusion (read: police called because of fights over who gets the kid) while raising your child(ren) in two separate households.
