Many clients come to me requesting “custody” of a child. It often takes some discussion to unpack what that means for that client. Under Alaska Law, there are two forms of “custody” we talk about, “legal custody” and “physical custody.” This post will explain those terms. It will also explain how I prefer to discuss these concepts.
Legal custody is the ability to make or be involved in big-picture decisions regarding your child, such as where they go to school, what medical providers they see, and what religious instruction they receive. Sole legal custody means that one parent makes those decisions; joint legal custody empowers both parents to make those decisions. There is a presumption that fit parents share joint legal custody, but that does not necessarily mean that it is appropriate in every case.
Physical custody relates to which parent is physically caring for the child at a given time. “Primary” and “shared” physical custody are distinctions that are driving by the number of overnights a parent has with the children. If one parent has the child for more than 70% of overnights, it is a primary physical custody schedule. If both parents have at least 30% of overnights in a year, it is a shared custody schedule. A parent who has time with a child for less than 30% of overnights in a year is exercising “visitation.”
These are the words that Alaska law gives us to discuss these concepts. But they are often not the best words to describe what a parent truly wants. Parents often come to me and say, “I want full custody.” That parent might mean that they want the child 100% of the time, with no visitation whatsoever to the other parent. They might also mean that they just want to be the primary caregiver, and the other parent have regular visitation, such as on weekends. I have even heard parents use that phrase to mean shared physical, and joint legal, custody.
I also dislike those words because “custody” makes it sound like we are talking about who owns a piece of property. “Visitation” sounds like a second-class parenting experience—as if the time a parent who spends weekends or a summer with their child is less significant than the school-year parent’s time with that child. In reality, this is not property, it is your child. Outside of the courts, you do not call yourself a “custodian.” You call yourself a “parent.” You do not say “I am visiting my child.” You are parenting your child.
As much as I can, I prefer to call custody and visitation “parenting time.” That is what it is—it is time when you are parenting your child, whether it be during the school week, weekend, summer break, or via Skype from thousands of miles away. I also find that the language of “parenting time” immediately takes us from discussing some legal concept to discussing the actual time you spend with your child.
Rather than “legal custody,” I prefer the word “decision-making.” Again, it is a place where people seem to get hung up on words: everyone wants custody of their children, but what does that mean? The evaluation is not about the quality of the relationship between a child and parent, but the ability of those parents to jointly make decisions about the child together.
Much of my job at Sherman Law Office, LLC is communicating: with clients, with other attorneys, with the court. It is important to me that I am using language that we truly connect on. If ever you find I am not, please do not hesitate to ask. The law is full of terms of art that meant something entirely different to be before I started a career as a family law attorney.