Home > divorce, family law general, paternity/child custody > Legal v. Physical Custody (There IS a difference!)

Legal v. Physical Custody (There IS a difference!)

(**Note:  This is again another very Utah Specific blog post.  Check your own state’s statutes for definitions of legal and physical custody, and as always, contact a lawyer licensed in your jurisdiction if you need specific legal information about your case/state.)

These blog posts quite commonly flow from my work experiences.  I had been asked a number of times in a short time-frame about legal custody.  What inspired me to finally address it in the blog came from a consultation I did. The couple divorced back in September of 2010.   In the terms of the divorce, mom was given sole legal AND physical custody of the children, but dad was given the right to have access to the children’s medical, school/etc. information.  That looks great on paper.  And rights to information WERE granted and ARE valid.  Trouble is, doctors, schools, etc., have legal privacy requirements.

He's bound by HIPAA--He's not talkin'.

They really can’t give out information to parents who do not have legal custody without consent from the parent who has it.

The parties in this case were concerned about what “legal custody” actually means, and how it would affect physical custody.  Short answer:  Legal custody affects physical custody not at all.  Not even a little.  And it’s spelled out specifically in statute, this time at U.C.A. § 30-3-10.1:

(1) “Joint legal custody”:
(a) means the sharing of the rights, privileges, duties, and powers of a parent by both parents, where specified;
(b) may include an award of exclusive authority by the court to one parent to make specific decisions;
(c) does not affect the physical custody of the child except as specified in the order of joint legal custody;
(d) is not based on awarding equal or nearly equal periods of physical custody of and access to the child to each of the parents, as the best interest of the child often requires that a primary physical residence for the child be designated; and
(e) does not prohibit the court from specifying one parent as the primary caretaker and one home as the primary residence of the child.

(emphasis added.)

So dad has to get consent from mom—So what?  While this doesn’t seem like it would be such a big deal, consider this:  People get divorced quite commonly because they do not like/do not trust each other.  Let’s now imagine the scenario that we’ll inevitably be playing through in reality when parent with no legal custody needs to get info allowed him/her under the court order.  (We’ll call him NLC for the sake of keeping his name short, and LC for the one with legal custody.)  NLC contacts the provider of whatever services the child(ren) are receiving, and asks for information he is entitled to under the decree.  Provider says, No can do, you don’t have legal custody, we have to have consent first from LC.  NLC calls up/texts/emails LC and requests LC provide the necessary consent to allow NLC to get the information he is supposed to get under the divorce decree.

Do you really want to go the rounds on this over and over??

LC is annoyed about having to do this and/or puts it off out of spite/lack of time OR LC promptly complies and the provider’s bookkeeping/office staff can’t seem to figure out how to handle written consent. . .and the Parade of Horrible Consequences continues.  Two people who do not like or trust each other are having to communicate about something that they could just avoid altogether had their divorce been drafted properly.  Tension increases, making communication about other issues about the kids just that much less pleasant.

SO.  If you intend to have both parents have access to the kids’ information, just save yourselves some trouble and go with joint legal custody.  It’s also going to be necessary to effectuate a decree that references the Advisory Guidelines (which most divorces do), located at U.C.A. § 30-3-33, because the guidelines reference sharing of information as well (at subpart 12).

Seriously.  And you can thank me later.

  1. May 23, 2011 at 9:44 pm

    And PLEASE PLEASE PLEASE remember that child custody, whether legal or physical, is NOT supposed to be about one parent having power over or controlling the other parent! Again–Put on your Big Girl Panties, Grow Up, and do the right thing for your kids, even if it means doing a decent thing for that *person* who you may hate right now.

    PLEASE. That is all.


  2. SMB
    July 1, 2011 at 11:52 am

    However, in cases where the father is accused of sexual abuse of one of the children, then perhaps things might need to be approached a little differently. The parent must protect the children at all costs, no matter what a divorce agreement says. It is up to the legal system to decide upon guilt, not the parent’s job. Until such a time the children cannot have any kind of contact or be put in danger until the issue is resolved.

    In the case that I believe you are talking about, the commissioner (I WAS THERE) SAID that the parents must have a mutually agreed upon supervisor or they had to get one from the state. Hopefully the lawyers in this case did not happen to ‘forget’ this little piece of critical information.

    In this case there has been no mutually agreed upon supervisor and NLC, who has been accused of abuse in this case, believes he can choose whoever he wants to protect HIS children? I sure can see that. He says to his girlfriend, “Hey GF, would you mind coming with me to pick up my kids? We can hang out, but if you have to go somewhere no biggie. Like I told you I would NEVER hurt my children. What? You’ve never met my ex-wife? Well, you wouldn’t like her anyway. What? You think it’s a bit strange that you could be the supervisor even though my ex-wife doesn’t know you from Adam? Well, I’m the important one here. I’m the one who hasn’t seen my children. I’m the one being accused of sexual abuse. Poor me.”

    Absolutely ridiculous on any kind of level. Previous to this happening NLC saw his children on the regular visits. The oldest child accusing him of sexually assaulting her has had little to no contact with NLC, but she has also been at an age to make that decision for herself.

    As a matter of fact, this has nothing to do with acting like an adult. It has everything to do with protecting children from a potential child molester. In fact, NLC should be doing everything he can to make sure his children are protected, even if it means from himself. EVEN if he didn’t do anything. And he can’t wait ONE WEEK for the lawyers to consult and arrange for an agreed upon supervisor/s? One week. One weekend for that matter. No. He can’t because this isn’t about his children, this is about HIM.

    Again, this is for the courts to decide and the parent, LC, to protect the children. Previous to this coming out NLC saw his children, just like the divorce agreement decreed. This has nothing to do with getting revenge, hating, disliking, or in LC’s case FEARING an ex-husband. This is ENTIRELY about protecting the children. And until the legal system decides whether or not this abuse occurred LC must do everything to protect the children.

    I’m curious to see if you will allow this post to your blog to be seen.


  3. July 4, 2011 at 9:19 am

    SMB–This post was a general statement to legal vs. physical custody. In MOST cases, joint legal custody is the way to go. In cases where there have been allegations of child abuse/molestation at the time of the divorce action, backed up by documentation through DCFS, a criminal investigation and/or a criminal conviction, obviously it would be inappropriate to have joint custody of any kind. But in those cases I would imagine that there would be no order within the decree granting an allegedly abusive parent access to the children’s medical, religious, and school information at all. Visitation would be supervised, if any were granted. The subject of this post is not after-the-fact legal issues. It is simply information regarding the drafting and workability of a decree of divorce.


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