Legal Custody? Physical Care? Both?

This conversation happens in the majority of my intakes of custody or divorce clients: the potential client will say he or she wants sole custody, but when pressed, the client has a vague understanding of what that means. Sometimes the understanding is completely wrong. So, here is your quick primer on what those terms mean.

Technically speaking, the term “physical custody” doesn’t really exist in Iowa. In an attempt to clarify the confusion, the Legislature now refers to “legal custody” and “physical care.” However, that does not mean people don’t still use the terms interchangeably or confuse the two. After all, custody just sounds like something that involves day-to-day care of the kids.

Iowa Code 598.1 outlines definitions of words used in the Dissolution of Marriage provisions of Iowa law, so we are all on the same terms when discussing these issues. This section defines “physical care” as “the right and responsibility to maintain a home for the minor child and provide for the routine care of the child.” In contrast, “legal custody” or “custody” gives the parent certain rights and responsibilities toward the child, including (but not limited to) “decision making affecting the child’s legal status, medical care, education, extracurricular activities, and religious instruction.”

Now in English: physical care defines where the child sleeps most nights. Legal custody defines who makes decisions about the child, including such things as whether to have the child baptized and in what church, whether the child takes dance classes or piano lessons, or whether to spend the money on braces when the dentist says they will be purely cosmetic.

Most people that say they want sole custody mean that they want primary physical care. They want to be the parent to maintain the primary home for the child. Lots of parents do not mind consulting with the other parent to make such important decisions as religious, medical, or educational decisions. This inclusion of the non-custodial parent in these decisions tends to make that parent still feel involved, and less like a weekend-only parent. It can also reopen lines of communication that have undoubtedly been damaged during the break up.

However, there are some parents that request sole legal custody and mean it. Usually the other parent in these situation has a history of domestic violence against the children or parent, a history of drug use, or serious mental health issues. But it can also be cases where the two parents can barely agree on anything, or one parent just wants to punish the other.

Whether to seek sole legal custody, or even primary physical care is, of course, a decision that can only be made based on the facts in any given case. But understanding the key words involved in the conversation with an attorney will only help clarify for both of you what is really desired.