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.