Definitions of Child Custody Legal Terms

Anita in mediation-IMG_5134_2489

Family Law and Mediation—Anita R. White, LLC

 

LEGAL DEFINITIONS

of Child Custody Terms

 

Louisiana Law provides some definitions for the terms it uses, but not all. And, the definitions are scattered around in different sections of the law and not collected in one place.

Legal Preferences – The law has come around to strong preferences for having some contact and participation, if possible, by both parents after divorce, and the value of this is generally supported by developmental research. Individual judges often have strong preferences, too, and which judge is assigned to any particular case is determined by the court’s system of assigning cases. Generally, the parents have the right to determine how they will care for their children if they agree, but even so, the judge can determine that an arrangement the parents agreed to is not “in the best interest of the child” and impose changes.

Child Custody – The care, control and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding. Black’s Law Dictionary

            Custodial Arrangement – An umbrella term used in the statutes referring to any type plan for caring for a child.

Sole Custody – One parent has complete authority and control over the child as well as complete responsibility for caring for the child. Sole custody never extinguishes the obligation of the other parent to help support the child financially and materially.

Visitation – When one parent has sole custody, the other parent has the right to have the child with him or her some of the time. Visitation can be specifically set to occur at regular defined times or flexible (as when one parent’s work schedule is erratic). Visitation can also be restricted and supervised (as in cases of abuse, addiction, mental illness, etc.) It is very rare for a court to prohibit any and all contact between a parent and child.

Joint Custody – An arrangement in which both parents participate in the care, control, and maintenance of a child. “Joint custody” can be legal or physical.

Shared Custody – A joint custody order in which each parent has physical custody of the child for an approximately equal amount of time. R.S.9:315.9

Split Custody – Each party is the sole custodial or domiciliary parent of at least one child to whom support is due. R.S.9:315.10

            Legal Custody – In the Children’s Code statutes designed to deal with the situation of several people or institutions participating in the care of a child, Legal Custody means a legal status created by court order which vests in a custodian the right to have physical custody of the child and the right and duty to protect, train, and discipline him and to provide him with food, shelter, education, and ordinary medical care, all subject to the powers, rights, and duties and responsibilities of the guardian of the person of the child and subject to any residual parental rights and responsibilities.” Children’s Code article 1511.(2)

            Physical Custody – Having the child physically in one’s care.

            Domiciliary Parent – The parent with whom the child “primarily resides”. The parents may have joint legal custody with one parent named as the domiciliary parent. The parents may even both have physical custody of the child some of the time, with one parent named domiciliary parent. The domiciliary parent has the right to make “all major decisions” about the child (such as choice of school) even is the other parent disagrees. The other parent who disagrees can challenge the decision in court, but the decision of the domiciliary parent will be “presumed” by the court to be in the best interest of the child, and the parent who does not agree has the burden of proving to the court that it is not. The domiciliary parent also has the right to claim the dependency deduction allowed on Federal Income Tax.

Essentially, in the case of divorce, Louisiana Law

  • gives the court the right to decide who gets to raise the child
  • sets the standard of determining who gets to raise the child
  • requires the court to determine who gets the child when if it awards joint custody
  • requires the court to determine how much money which parent will give the other parent

One problem is that they law sometimes uses a term without defining it. When that happens, the definition is often set by appeals courts.

Another problem is that some terms used in one section of the law are defined much later in other sections of the written law. The general practice is that someone trying to understand the law can look to those definitions for guidance while remembering the specific purpose and so do not apply generally. Under the laws that provide for the state stepping in to take a child when it believes the parents are not providing proper care, we find definitions of legal custody and physical custody.

LOUISIANA LAW

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.

            In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly: however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.” Louisiana Civil Code Article 132.

Joint Custody” means a joint custody order that is not shared custody as defined in R.S. 9:315.9Louisiana Revised Statutes 9:315.8.E. (for child support calculation)

Legal custody” means a legal status created by court order which vests in a custodian the right to have physical custody of the child and the right and duty to protect, train, and discipline him and to provide him with food, shelter, education, and ordinary medical care, all subject to the powers, rights, and duties and responsibilities of the guardian of the person of the child and subject to any residual parental rights and responsibilities. Children’s Code article 1511.(2)

Physical custody” means the duty and authority to provide care for the child in the home of the custodian. Children’s Code article 1511(3)

            “Shared custody” means a joiont custody order in which each parent has physical cstody of the child for an approximately equal amount of time. Louisiana Revised Statutes 9:315.9.A(1) (dealing with the setting of child support)

Other sources of definitions: 

            “Custody of Children” – The care, control and maintenance of a child which may be awarded by a court to one of the parents as in a divorce or separation proceeding. Black’s Law Dictionary

From Wikipedia (with some editorial tinkering):

Joint Custody

            Joint custody is a court order whereby custody of a child is awarded to both parties. Many states recognize two forms of joint custody: joint physical custody, and joint legal custody. In joint physical custody, which is also known as joint physical care, actual lodging and care of the child is shared according to a court-ordered custody schedule. In many cases, the term ‘visitation’ is no longer used in these circumstances. In joint legal custody, both parents share the ability to have access to educational, health, and other records, and have equal decision-making status where the welfare of the child is concerned. It is important to note that joint physical custody and joint legal custody are different aspects of custody, and determination is often made separately in many states’ divorce courts. E.g., it is possible to have joint legal custody, but for one parent to have primary physical custody. Thirty-seven states and Washington, D.C. have some form of preference or presumption for joint custody, although even in those states, enforcement varies widely. From Wikipedia, the free encyclopedia 

Physical Custody

Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.

Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent.

Legal Custody

Legal custody of a child means having the right and the obligation to make decisions about a child’s upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.

Sole Custody

One parent can have either sole legal custody or sole physical custody of a child. Courts often consent award sole physical custody to one parent if the other parent is deemed unfit — for example, because of alcohol or drug dependency of one parent or a new partner or because of child abuse or neglect. Even then, the parent without custody is usually allowed to see and be with the child in restricted and, if necessary, supervised situations. It is rare for a parent to be totally excluded from contact with his or her child.

However, in most states, courts are moving away from awarding sole custody to one parent and toward balancing the roles both parents play in their children’s lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child’s upbringing, but one parent would be deemed the primary physical caretaker (“domiciliary parent” in Louisiana), while the other parent would have visitation rights.

From a website found with Google: http://www.nolo.com

Joint Custody

Parents who don’t live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:

  • joint legal custody
  • joint physical custody (where the children spend a significant portion of time with each parent), or
  • joint legal and physical custody.

It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.

Comments are closed.