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NS-Difference Between Joint and Physical Custody
Jan L. Warner & Jan Collins

Question: My wife and I divorced several years ago and agreed to joint custody of our two daughters, now ages five and seven. We had been getting along fine until my wife lost her job and found a new job about 300 miles away. Now she wants to move and take the children. This will hamper my visitation and time with them tremendously. On the other hand, without her income, my child support will go up substantially (which I can’t afford). I work full time. Do you have any ideas about how to resolve this situation without involving lawyers that neither of us can afford?

Answer: With our mobile society, relocation of children has become a big issue. And because of our current bad economy, we believe relocation issues will become more and more prevalent.

First, and foremost, any agreement you enter into should be prepared by lawyers to make sure the language is correct, and the same should be approved by the Court. If you and your former wife enter into an agreement, the cost should be considerably less.

What most divorced and divorcing parents don’t understand is the differences between “joint legal custody” and “physical custody”, as there are distinct and important differences.

Some states have "joint custody" laws that encourage family court judges to grant parents “joint legal custody," which means that each parent has the right to participate in decisions concerning their children’s medical treatment, education, and religious training. In all cases, there should be a “tie breaker” – that is, one parent – normally the primary custodial parent – should be the final decision maker.

These states also give courts the authority to award "physical custody" to one or both parents. “Physical custody” means a determination of where the child actually lives. Since it is generally found best for the children that they spend the majority of their time with one parent, one parent may be granted “primary physical custody” while the other is granted "secondary physical custody" or, in the more popular vernacular, “visitation rights.” The parent with “physical custody” or “primary physical custody” is sometimes called the custodial parent while the other is called the “non-custodial parent.”

Generally speaking, the non-custodial parent is awarded by court decree or by agreement-specific, scheduled times with the children that may include alternate weekends, time after school or in the evenings each week, and a reasonable portion of scheduled school holidays and vacation time.

Some states may allow a custodial parent to determine where the children live provided the move is not made with the ulterior purpose of refusing the non-custodial parent time with the children. This does not appear to be the reasoning here.

A judge can issue orders restraining the custodial parent from moving the children from one geographical area to another -- especially when the non-custodial parent spends considerable time with the children and their removal would be disruptive to the children’s future development.

Here, since it appears that relocation is going to be necessary, we suggest you and your former wife enter into an agreement that that would expand your time in the non-school months and holidays and give you time in the new city of their residence. This does not appear to be a case that needs a judge, but you do need lawyers to protect both your rights.

Always check with a matrimonial lawyer where you live to find out the latest developments in your state before you act.

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