Whats the Difference Between Legal Custody Vs Full Custody?

Sydney Mitchell:

Hi. My name is Sydney Mitchell.

Matthew Brickman:

Hi, I’m Matthew Brickman, Florida Supreme court mediator. Welcome to the Mediate This! Podcast where we discuss everything mediation and conflict resolution.

(00:10):
Hello, listeners. Today I’m going to answer one of the questions that, Sydney and I received from you that are out there listening. And the question is this, what’s the difference between legal custody and physical custody? And it’s got a part two that says, does custody still exist? So to answer this question, I’m gonna preface this with generally what sydnee and I tell all of you regarding all of your questions is that it is important to understand and know the laws and your particular state. Now, let me first start off by saying that in the state of Florida in family law, there is no more custody. Um, one of the things that we have been told as practitioners in family law is that the only people that get taken into custody and have visitation rights are criminals, not children.

(01:15):
So in Florida, we do not have terms such as custody or visitation in family law. Um, those are also two quite adversarial terms. They sort of have a negative connotation to them, just like primary parent and secondary parent. I mean, who wants to be secondary? Everybody wants to be primary. Um, I don’t know anybody including myself, that that said, oh, yeah, yeah, I wanna be the second. Um, no, I wanna be primary. But in Florida since 2011, um, we have not had terms such as custody or visitation or primary or secondary parenting. Now, vance’s important to know, and I’m going to now answer the first question. So part two of this question was, does custody still exist? Not in Florida, but it does. Um, it does in some states. And so it’s important to know the laws in your state. So in order to answer the question, what’s the difference between legal custody and physical custody, we need to look and see, well, what do those terms actually mean?

(02:22):
And then I will then tell you how they work here in the state of Florida, being that we no longer have the word custody. So legal custody. What is legal custody? Legal custody gives the parent the ability to make decisions for the child. So a parent who has been granted legal custody of a child has the right to make decisions about the child’s medical care, schooling and education. Um, and then physical custody. What is physical custody then? Well, like you would probably imagine that is what we now call time sharing. So physical custody gives the parents the rights and obligations to take care of the child on a daily basis. Physical custody allows the parent to have the right for the child to live with him or her. So now that we have defined what is physical custody and what is legal custody, let’s talk about what that actually means in the state of Florida and how does that pertain to a parenting plan.

(03:31):
So legal, custody and physical custody are the two core parts of any parenting plan. Whether your state acknowledges those terms, legal custody or physical custody or like Florida, we do not acknowledge those terms, but we still have sections discussing what that means. So the two main parts of a parenting plan is decision making and then time sharing. So in the state of Florida, the statute says that the parents shall have shared parental responsibility and decision making unless the court finds that decision making, uh, being shared is detrimental to the child. And if you go back and listen to, um, my podcast regarding the parenting plan, we go into detail of what are the rules of shared parental responsibility and decision making and how does that all work? And then what is shared with Ultimate and then what is soul? And so I break down those three in a previous episode.

(04:39):
So I do encourage you to go listen to that episode if you want a lot more detail. So, um, then we have physical custody. And what’s interesting is the wording, how they word physical custody, and then how Florida deals with the quote unquote physical custody or even time sharing. So physical custody gives the parent, and this is where it’s important, physical custody gives the parent the right and obligations to take care of the child on a daily basis. Physical custody allows the parent to have the right for the child to live with him or her. In Florida, that’s not how public policy is. In Florida, it says it is public policy of this state that the child remember physical custody says the parent, right? An obligation to take care of the child and the parent to have right for the child to live with him or her.

(05:43):
In Florida, it is public policy that the child is entitled to frequent and continuing contact with both parents so that the parents can then enjoy the joy’s rights and obligations to take care of the child. So physical custody says that the parent is entitled to the child. And in Florida, the child is entitled to both parents. And in Florida statute, it goes on to say that there is no presumption for or against either parent or for or against any time sharing schedule when created or modifying the parenting plan. So really what is legal custody, physical custody, decision making, time sharing. What is that really the easiest way that I explain this to, uh, a mom and dad in mediation is this. We are transitioning out of the three phases of emotional relationship, which is acquaintance intimacy and loss of intimacy. And the entire point of the parenting plan is to transition the parents into a business-like relationship.

(07:03):
So we leave emotion and we move into business. Now, you don’t have to like or dislike who your business partner is, you don’t have to love or hate them. It’s business. You don’t have emotions when it comes to who you’re in business with. And so if we look at legal custody, which is about making the decisions in Florida, it says that the court shall order the parental responsibility be shared. So what does that mean? That means that when it comes to making decisions regarding the child, it’s 50 50. So think of it like this. If if this is a business, if we’re transitioning out of emotion into business, we are creating Child Inc. It’s a company. Mom is a 50% decision maker, CEO of the company, and dad is a 50% decision maker, CEO of the company. And then in the parenting plan we go through and we talk about how they’re gonna talk and what they’re gonna talk about and what they have to, you know, agree on and whatnot.

(08:05):
Basically those are scheduled board meetings and they can have regular board meetings, irregular board meetings, they can always talk. But when it comes to making decisions regarding the company, which is the child, they have 50 50. Say nobody has 51%, nobody can override the other parent. They have 50 50 say when it comes to education and medical and wellbeing and health of the child. So that’s one aspect that would be quote unquote legal custody. But then we have physical custody, that’s the time sharing. So many parents get bent outta shape when it comes to time sharing. I’m not giving 50 50 or, or, or she can have or he can have. What’s interesting is in Florida, he can have, or she can have or I’m not giving, is not anyone’s to give because in Florida different than the definition of physical custody where the parent has the right in Florida, the child has the right.

(09:09):
So neither parent is giving or allowing the other parent time sharing, the child is entitled to it. So how does this actually work? Some people say, well if the child’s entitled to it well, don’t they get a say no. Children have an opinion, they do not have a say. And so then the question is, well, it what age do they get a say? Well, in Florida they don’t get a say. They can then decide where they want to go when they emancipate and they’re no longer under the jurisdiction of the family court. But until that time they have an opinion, not a say. And I used to always tell both of my children, look, I value you. I value your opinion, I need your input. If you don’t talk to me or you don’t tell me if you’re not open with me, then I’m going to unilaterally make decisions regarding your life.

(10:02):
Now, I don’t want to do that. I want your input. Now just keep in mind at the end of this conversation, I am the adult. I am in charge and I have the final say. But I value your opinion, I need your input and I wanna know what you’re thinking and what you’re feeling. And so, um, it is important to understand that when it comes to the physical custody, we are simply talking about and going back to this illustration of a company of Child Inc. We are simply now taking 365 calendar days. And we are saying on these particular days, mom, as a 50% CEO decision maker of this company, these are the days out of the calendar year that mom is going to go into the office and run Child Inc. And Dad, these are the days that you were going to go into the office as the 50% c e o and Run Child Inc.

(11:06):
Time sharing or physical custody simply is dividing up the days of who’s going to be running the company on what day. Mom and dad are never gonna be in the office on the same day. And so really what is a parenting plan? A parenting plan is the corporate docs that structure the company. They let both CEOs know what they are allowed to do and not allowed to do as the CEO of the company. So for example, as the ceo, you do not have the power to just go and fire HR because then the other parent’s gonna go to run the company and they’ll be like, where’s my HR director? Oh, I fired him last week. No, you’re not allowed to fire hr. Now as far as day-to-day decision making, we have a section in the parenting plan on day-to-day decision making. And it says both parents can make their own decisions regarding the day-to-day care and control of the child while the child is with each parent without any interference from the other parent.

(12:08):
So as long as everybody is abiding by the rules of shared parental responsibility and decision making, when it comes to the little day-to-day decisions, then whatever ceo, whoever’s ceo, mom or dad, whoever is running the company, whoever has been designated under physical custody or under time sharing that these are your days where you’re responsible, then guess what? It’s your day to figure out getting the kids to school, picking the kids up, bathing them, feeding them homework. It is your job to either do it or figure out who’s going to do it. Now, some people like to override that and they want to have a right of first refusal that if you’re not going to do it before you get a third party, let me know. But I, I will tell you that never fixed anything. It creates more problems and it fixes. And we can go into detail in your mediation, um, on why that does actually create more issues than it solves.

(13:13):
But some people still want it there. But generally, under day-to-day decision making, you can make your own decision. So that means that if you are not going to be able to leave a meeting and go do something as the ceo, so say for example that you’re working and can’t get the children from school, then you can designate a third party to pick them up and bring them home. Or you can designate that they’re gonna ride the bus or you can designate that, you know, Joey’s mom is gonna, um, have a play date and then you’ll get ’em from Joey’s mom after the play date, after you get done with work. But you are in charge. It’s your day, you are in charge, be the ceo. And so when we look at terms like legal custody and physical custody, when we’re talking decision making and time sharing, again, the best way, the best mindset to be able to have success in your parenting plan is to go into it with the mindset of I am a ceo.

(14:13):
You are a ceo, you don’t have to have feelings about your ceo. And we’re going to, in mediation, we’re gonna negotiate the terms and create the corporate docs. They’re gonna structure the company Child Inc. And at that point then we will have addressed legal custody or decision making and physical custody or time sharing so that both parents can move forward running the company. The idea is that both the mom and the dad as CEOs of the company build the biggest, brightest, most successful company out there. And that is what a parenting plan is all about.

Matthew Brickman:
Occasionally Sydney and I will be releasing Q & A bonus episodes where we will answer questions and give you a personal shout out.

Sydney Mitchell:
If you have a comment or question regarding anything that we discuss, email us at info@ichatmediation.com that’s info@ichatmediation.com and stay tuned to hear your shout out and have your question answered here on the show.

Matthew Brickman:

For more information about my services or to schedule your mediation with me, either in person or using my iChatMediation Virtual Platform built by Cisco Communications. Visit me online at www.iMediateInc.com. Call me at 561-262-9121, Toll-Free at 877-822-1479 or email me at MBrickman@iChatMediation.com.