Divorce Tips: Legal vs Physical Custody

10/08/21 • 6 min

Summary:

In this divorce tip episode, I explain the difference between legal and physical custody, including the relationship of custody to child support. I also define parenting plans and the dispute resolution clause, and I outline the differences between major and minor decision making for co-parenting.

Show notes:

What is the difference between legal custody and physical custody? It depends on the state if this applies to you since this isn’t a distinction in some states. But for the states this does apply in, I want to explain the difference between the two.

Legal custody is the decision making regarding your children. In Utah, the presumption for legal custody in most divorces is joint legal custody. This assumes that you and your spouse are going to work together regarding the major decisions of your children. Major decisions are defined as decisions involved with religion, education, extracurricular, and medical. Anything not in those categories is considered a minor decision, and the parent with the physical custody of the kids that day can make that decision. In joint legal custody, the court requires you to create a parenting plan , which is a legal roadmap for how you and your spouse are going to co-parent your children after the divorce. It includes a dispute resolution clause so that when you and your spouse are unable to come to these major decisions regarding your children together, there is a set up process for what to do. It will outline 3–4 steps for what to do in those instances, such as talking with experts or going through mediation. Most major decisions are able to be made between co-parents without resorting to the dispute resolution steps, as long as the parents remember that they both share the same goal of wanting the best for their kids.

Physical custody is defined by how many overnights a parent has per year. To have joint physical custody, you only have to have 111 overnights (out of 365) per year to be considered a joint physical custodian of your kids. It could be 50-50 or 70-30 split or anything in between, according to the percentage each parent has within joint physical custody. So the terms like sole or joint physical custody don’t matter as much as how many overnights you actually have with your kids.

In Utah, the number of overnights you have directly correlates to the amount of child support you’ll pay or receive. In Texas, child support amount doesn’t correlate with the parent time, it’s only about income, so you’ll need to check in your state.

Summary:

Show notes:

Previous Episode

Matt Ames: Your Kids Will Be Okay

Summary:

One of the biggest fears parents have going into a divorce is how it will negatively affect their children. Today I’m talking to Matt Ames, whose parents got divorced when he was in high school. Listen in as we lay out some tips to help kids and their parents get through the process positively.

Some tips to make the transition easier for your kids during divorce:

Keep your kids out of the fight; leave them out of the divorce drama. It’s ok to be angry, but try to move through that phase quickly so you don’t irreparably damage your children by using unfair tactics like using the children to hurt your spouse. That just hurts your children.
Try to keep up daily normal routines for your kids so they can keep their activities and friends. If you want to be an equal parent, show up as an equal parent. Don’t move an hour away and expect your kids to have to travel an hour to get to school. That takes a big toll on kids.
Be present for your kids. You can allow your older kids to be there for you emotionally too, but be careful and don’t expect too much from them. Make sure they always know you love them.
Never trash talk your spouse in front of your kids. Not publicly, not on social media, not in any place your kids could ever see.
Be prepared and willing to answer your kids’ questions honestly. (e.g.: Where will I live?) Don’t put false expectations or promise anything you aren’t in control of or aren’t sure about.
Prioritize your mental and physical health. Go to therapy, go to the gym, establish self-care.
Remember that your spouse can be a really bad spouse, but that doesn’t mean they are a bad parent. Keep those separate and honor the relationship your kids have with your ex. What do each parent have in common? They both want what’s best for their kids. Use this as the base of your co-parenting relationship.

Tips for teens whose parents are going through divorce:

Be there for your other siblings, especially younger siblings.

Remember that everything is going to be ok.

Next Episode

Jessica Frew: Finding Out My Husband Was Gay: Inviting Love Instead of Contention in Divorce

Summary:

My guest, Jessica Frew, hosts the “Husband in Law” podcast with her husband and her ex-husband. Today she’s sharing with me how she maintained a healthy and communicative relationship with her ex—even through when her ex came out as gay and had an affair, the divorce, a re-marriage, step-parenting, co-parenting, and being in business together.

Show notes:

Jessica Frew is a wife, ex-wife, mom, stepmom, and BOLD action taker. She has a successful podcast called “Husband in Law” that she records with her husband, Matt, and her ex-husband, Steve. Together they are sharing their stories of love, marriage, coming out, divorce, remarriage, and co-parenting to help others know they are not alone.

Her first husband, Steve, was married to Jessica for a year before he came to terms with the fact that he was gay. He wasn’t ready to embrace that or leave the marriage at that point, so they stayed married for another 6 years until he had an affair and they tried to work through it but it was a mess so they ended up divorcing. They had a 2-year-old daughter at the time of divorce. They didn’t want to have the typical resentment and issues that they had seen often in divorced couples so they took the time to figure out what they wanted their relationship and coparenting structure to look like for them. They hang out more than most ex couples and have a fairly unconventional co-parenting system. They spend all holidays together, work together, etc. Jessica married her second husband, Matt, 8 years ago and Steve actually now works for Matt. She has step kids through her second marriage.

Lessons learned:

When your partner shares something so vulnerable with you, take time to understand what it means to you. When your partner is already carrying personal shame with them, you don’t need to add to that in a negative way; they are likely already hard on themselves internally. Help them remember everything that’s good about them. Don’t judge them or create more shame; be there to love and support them.

You can handle a lot more than you think you can and you can do hard things. Just because your reality changes doesn’t mean that you can’t be happy.
Give yourself grace, give your spouse grace. If you do react poorly or accusatory or say hurtful things to them, come back and apologize and own your part.
Nothing about going through a divorce is easy. But if you take the time to create an amicable and communicative relationship with your to-be ex and get over your ego, it can be a lot less hard. Learn now how to effectively communicate. Use your words nicely. Take the time to consider your response and how you communicate with your ex.
Take the time to sit down and identify your own fears, deal breakers, priorities. Figure out what you need to do that is in your control. Heal yourself. Allow your ex to heal themselves.
Create boundaries. Boundaries are important in every relationship, including within yourself.
Put your kids before your ego. Make the first priority and common ground with your ex be that you want what’s best for your children. Most the time, your ex or the new step parent isn’t trying to take your place.
Love comes in all shapes and sizes. Let go of what you think life should look like. See how you can invite love in instead of contention.