What is the Difference Between Legal Custody and Physical Custody?

What is the Difference Between Legal Custody and Physical Custody?

Alabama Code §30-3-157 is known as Alabama’s “Joint Custody” statute and it defines the different types of legal and physical custody in our state.  This statute sets out our state policy as follows:

 It is the policy of this state to assure that minor children have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children and to encourage parents to share in the rights and responsibilities of rearing their children after the parents have separated or dissolved their marriage. Joint custody does not necessarily mean equal physical custody.

As you might imagine, there are a lot of misconceptions about what joint custody means versus what state law actually says.  It is for this reason that any time a client tells me they and their spouse want to agree to joint custody, I ask the question, “what does joint custody mean to you?”

Joint Custody means that the parents have both joint legal and joint physical custody.

Joint Legal Custody means both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.  If one parent has sole or primary physical custody, that parent ends up being the final decision-maker if there is a dispute.

Joint Physical Custody means physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.  This is the definition according to state law.  In our jurisdiction, joint physical custody almost always refers to custody arrangements where the parenting time is shared on an equal, 50/50 basis, in some fashion.

Sole Legal Custody means one parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.  Sole legal custody is typically only ordered if the other parent is a danger to the child.

Sole Physical Custody, is more commonly referred to as “physical custody” or “primary physical custody” means one parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court.

Communication Strategies for a High-Conflict Divorce

Communication Strategies for a High-Conflict Divorce


What is a High-Conflict Divorce?  A High-Conflict Divorce is one hallmarked by constant fighting, where one or both parties fight for the sake of fighting without regard to the effect on the family, particularly the children. There is a lot of overlap between high-conflict divorce and personality disorders or traits such as narcissism, controlling behaviors, and lack of empathy.

When you have children with someone, you will have to communicate with them, no matter how unpleasant it may be. Here are some strategies:

1. Stick to the issue at hand

When you contact the other parent to ask about your son’s baseball game, and they respond with a 10-page email diatribe how none of this would even be happening if you weren’t such a terrible person and terrible parent, do not respond to their attack. A high-conflict person wants you trapped in a power struggle with them and if you engage, they win. Avoid the temptation to defend yourself or reply with your own attacks, and keep the discussion to the baseball game.

2. Get it in Writing

A high-conflict person may often manipulate or twist reality, even to the point of telling outright lies. Whenever possible, communicate in writing to avoid the inevitable “You never told me that,” “I didn’t say that,” or even “You threatened me.” You can use text, email, or a host of the co-parenting apps and websites that are on the market now.

3. Take the High Road

When dealing with the near-constant needling of a high-conflict person, it may be tempting to engage in your own antagonistic behavior because you are tired of feeling bullied, such as bringing your girlfriend to a visitation exchange because you know it will make your ex-wife furious, or refusing to swap visitation days with your ex-husband when his family is visiting simply because you don’t want him to get his way. In the long run, these behaviors only hurt your children. Taken to the extreme, high conflict divorce can even be lethal, like this recent news story from North Alabama.

Co-Parenting Apps & Technology

Co-Parenting Apps & Technology

Technology and apps have come a long way in assisting in co-parenting. Co-parenting apps can provide an essential tool to aid in communication and scheduling. Some also offer secure messaging, which is useful in high-conflict custody situations. 

If you are in a high-conflict custody situation where you have experienced a lot of litigation, it can be very difficult to cobble together emails and text messages etc. to prove who said what when, so the messaging feature would be especially useful to you. Additionally, the app shows what information was shared and when so there is an automatic record. 

Here are a few options:

1. Google Calendar

Cost: FREE

Benefits: Can create a shared calendar specifically for co-parenting issues, while also having a work or personal calendar that only you can see right on your Google calendar app on your phone. Parents can share scheduling information, extra-curricular activities, and doctor’s appointments. You can also create a recurring event for visitation schedules, so you will always know whose weekend it is.

Drawbacks: No messaging, no ability to upload documents such as expense information.

2. Our Family Wizard

Cost: $99 per year, per parent

Benefits: Has all of the calendar features of Google calendar, with the added features of secure messaging and the ability to upload expenses that need to be reimbursed such as medical bills. You can also store family information such as immunization records and insurance cards. The use of Our Family Wizard has been ordered by courts all over the United States, so it is widely considered a reliable record for communications scheduling and expenses.

Drawbacks: For cash-strapped parents, the cost can be prohibitive. Amazon indicates a lot of 1 star reviews with complaints about the app crashing, not very user friendly, and not worth the money.

3.  AppClose

Cost: FREE

Benefits: Provides all the calendar features of Google and Our Family Wizard, has secure messaging, sharing and exporting of records, and incorporated expense reimbursement through the app itself. This app has scheduling templates or you can fully customize your schedule. Online reviews are excellent and indicate that this app is very user-friendly.

Drawbacks: This app is relatively new compared to the other options, so other parents, courts, or attorneys may be more resistant or skeptical of using it.

Is Joint Custody Right for My Family?

Is Joint Custody Right for My Family?

Joint Custody is an arrangement where each parent has the children for equal (or close to equal) amounts of time. The most common schedule is that each parent has the children for one week at a time, typically exchanging the children on Fridays or Sundays. If you are considering a joint custody agreement with your soon-to-be former spouse or romantic partner, there are several factors you need to consider:

How do you make decisions?

Can you and the other parent truly cooperate and agree upon every major decision regarding the children? Maybe you can, but there is a distinct possibility you may not be able to do so for the many years to come. If this is a concern, you may need to name a “tiebreaker” parent for major decisions such as religion, education, medical/dental, and extracurricular activities.

Holidays

Each parent is going to want holiday time with the children. There may also be holidays that are important to one parent but not the other parent. For example, one parent may have a big family reunion on July 4th each year, while the other parent does not have any special activities that day. It may make sense for the parent with the family reunion to have that holiday. Other holidays may need to be divided up in a way that is fair to both the parents and the children.

Work and Activity Schedules

You need to be sure that joint custody will work for the work and activity schedules for your family. If one parent works overnight every night, and you have young children, joint custody is probably not appropriate. If the children have an activity that is at 6pm every Wednesday, but Dad always works until 7pm on Wednesdays, he may not need to have them on Wednesdays if he can’t get them to their activity.

Communication and Cooperation

Above all, communication and cooperation are key items in a joint custody arrangement. Both parents will have regular responsibility for making sure schoolwork is completed, medications are taken, and uniforms are sent back and forth as needed. This will require frequent communication and cooperation among the parents. If you cannot put aside your differences enough to work together on this level, then joint custody may not be for you.

What is Abandonment? A Top Misconception in Divorce.

What is Abandonment? A Top Misconception in Divorce.

On an almost daily basis, clients and potential clients say to me, I can’t move out of the house because that’s abandonment, right? I recently spoke at a CLE for other attorneys, most of whom do not primarily practice family law, and some of the attorneys even harbored this misconception. Many people believe that you can forfeit your interest in the marital homeplace by moving out.

Ala. Code §30-2-1 lists several grounds for divorce, including the following at part (3): For voluntary abandonment from bed and board for one year next preceding the filing of the complaint.

As you can see, simply moving out of the marital home when divorce is imminent does not meet the definition of abandonment under this statute. That being said, there are many factors to consider when making the decision to move out, including but not limited to payment of household bills and custody of children, so it is essential to seek legal advice on your specific situation prior to packing your suitcase.

What is the Role of a Guardian Ad Litem?

What is the Role of a Guardian Ad Litem?

A Guardian ad Litem’s job is to represent the best interests of the child in any given case, and the Guardian Ad Litem does not represent either of the parents. As such, the Guardian Ad Litem cannot give parents legal advice. Parents must turn to their own lawyers when they need legal advice. If the parents need assistance in presenting evidence, gathering witnesses, etc to advocate for their own position in a case, that is a job for their own attorneys as well, and not the Guardian Ad Litem.

Although the Guardian Ad Litem can make recommendations to the court about custody and visitation in those types of cases, the GAL does not “rule” or make the final decision. Ultimately, only the Court can make the final decision on a case. Of further note is that the Guardian Ad Litem is forbidden from having ex parte communications with the Court. An example of an ex parte communication would be if the GAL had a private conversation with the judge about the case outside of the presence of the attorneys for the parties. As such, the GALs recommendation typically takes the form of a written report that is filed with the Court and thus made simultaneously available to all parties. Some judges do not request recommendations from the GALs and merely expect them to advocate for the child as any other attorney.

In some cases, a GAL may be appointed for a parent or spouse because that person is a minor themselves or is otherwise incapacitated due to mental or physical illness or disabililty. The GAL’s job remains to advocate for the best interests of their client.

Outside of custody and divorce cases, a GAL can be appointed for a minor or incapacitated person in all types of civil lawsuits and their specific role may differ.