What is the difference between sole and joint physical custody?

Nearly every parent that comes to my office for a consultation has a discussion with me about this. And for good reason! The legal difference is quite drastic between the two and what might feel like sole custody is probably considered joint custody by the legal sytem.

To clarify, child custody entails legal and physical custody. This can be sole legal and sole physical, joint legal and joint physical, or any combination of the two. The statute that addresses it is Chapter 452, Section 375 of the Missouri Revised Statutes. For this article, we are focusing on physical custody.

The Missouri statute defines joint physical custody as follows:

"Joint physical custody" means an order awarding each of the parents significant, but not necessarily equal, periods of time during which a child resides with or is under the care and supervision of each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents;

If you notice in reading the statute, there is no definition for sole physical custody. That leads us to say that when it is not joint, it is sole custody. Confusing, right? You bet it is.

The reason I discuss this at length with all my parent clients is what qualifies as “significant periods of time” to one person is does not qualify as significant to another person. As an attorney, I have to figure out and explain to my clients if the parent receives significant periods of time during which a child resides with or is under the care and supervision of that parent. Even case to case, I have to step back and ask is this significant time that a court would say is joint custody? Usually the answer is yes.

Here is how the court considers it from my experience: Does the parent in question have regularly scheduled parenting time that is not supervised or limited based on the intentional actions of that parent against the child’s best interests?

To begin with, the court will always say every other weekend is joint custody. Even one weekend a month can qualify to a court. Why? Because we have to balance the well-being of the children with the logistics of work and school schedules, not to mention distance between parents’ residences.

Let’s look at two examples and work it out. This should help see where the line is drawn for the court.

First example:

If seven year old Timmy’s mother lives in Liberty, MO and his father lives in Overland Park, KS, regular exchanges during the week become problematic. That’s about an hour drive per parent if they meet halfway. Weeknight visits during the school year would be inadvisable since Timmy and parent would have to get up much earlier. The court considers this joint custody.

Using the same cities as before, what happens if one of those parents works on the weekends or has a rotating schedule? The parent is still a good parent and there are no concerns about Timmy being with that parent. But Timmy clearly shouldn’t be alone at night at that age. Effectively, one parent has Timmy much more than the other parent through no fault of Timmy or the parents. (We are skipping the arguments that the parents should live closer. It is not always easy or clear cut.)

Essentially, if you remove distance and work schedules as the obstacles, there are no concerns about Timmy being with either parent. This would result in the court ordering joint custody.

Second example:

Ten year old Jenny’s mother and father live Blue Springs, MO. Mother has parenting time with Jenny every other weekend but only in the afternoons from 1:00 PM to 7:00 PM. This was ordered because Jenny’s mother has left Jenny alone over night by herself repeatedly and failed to get her to school on time for the last few years resulting in poor attendance and grades.

This seems easier to determine sole custody, but this can vary from judge to judge! Here we have legitimate concerns about mother’s parenting abilities. How do we get to a more likely order for sole custody? By changing the time to 1:00 PM to 4:00 PM and add that is must be supervised by a third party because mother had an alcohol addiction and was driving drunk with Jenny in the car. We now have solid grounds to label this as father having sole physical custody without wondering if the court would agree.

The big takeaway is this: to get sole physical custody, one parent has to be acting in manner that is detrimental to the child. Otherwise, you will have joint physical custody of the child with the other parent. Lots of parents do not feel this is fair considering in the first example one parent is taking on a brunt of the parenting duties and rearing of Timmy. That’s why the definition does not say equal amounts of time. The court does not want to punish a parent or child for making hard life choices, such as taking that much better job out of state or moving in with a sick family member that is further from child’s school.

If you want to further discuss physical custody, schedule a consultation with me by calling 816-895-2858 or sending an email!