Welcome back to the Ox and Dying Law podcast. Custody conversations can be confusing, but today we're breaking down the difference between parenting time and legal custody, which can control everything from school decisions to your vacation schedule. So, if you're trying to protect your relationship with your child, today's episode is a mustsee. Let's explain legal custody. Christine, uh, some people don't know what legal custody means, >> right? So, in Georgia, when we talk about legal custody, we're talking about who has access to a child's records, who can act as their parent or guardian as far as getting them medical attention or signing them up for school, things like that. It's simply the right to access their records and act as a parent or guardian. So, a lot of times the first thing Jared and I are going to tell any client is you're going to have joint legal custody and there's this uproar. What do you mean? No, no, I don't. Okay, that has nothing to do with your day-to-day schedule. We're talking access to records and rights to your child. So, that is when we talk about joint legal custody. That's what we're talking about. >> Yeah. Which is the right to access those records and and have access to equal information essentially. And then the next step of legal custody is who gets to exercise final decisionmaking authority. And that's what we argue over a lot. So keep in mind legal custody involves making decisions on your child's education, their medical decisions, their extracurricular activities, and then religion, which is not so much anymore. And we'll talk about why that's the case. But legal custody, we have to decide who's making the final decision in those areas. So when you have joint legal custody, the parties have to mutually discuss all those major matters. But if they can't agree, somebody has to exercise tiebreaking authority, >> right? And it is in fact just that literally the two of you have exhausted every potential option to agree on something. It is a true final decision tiebreaker. So many people misinterpret that as a unilateral act like well they can just go and put my child. No they cannot. Uh there must be good faith discussions and if you're being honest it may seem high conflict now but by the time that you're done chances are 90% of these things you're going to come to the same page on. I may not say you agree on. You may not agree in the beginning, but if you're being honest and talking just about the best interest of your children, not the mom, not the dad, not either parent, but the best interest of the children, chances are you're going to come to the same conclusion at the end of what's best for your kids in those major categories. >> Well, one would hope so, but we certainly have high conflict cases where parties cannot reach a mutual decision. You should for the best interest of your child, you possibly can, but if not, somebody's got to have that tiebreaking authority. And it can be important. I would say the most important one that tends to be the case in most of our cases would probably be education. And that's just because whoever has filed an education, that parents residence is determined as primary for purposes of in school enrollment, which is a fancy way of saying whoever has found decision-making authority on education, that's where the children are go to go to school based on that parents residence. >> Yeah. Unless you're doing a private school or something where um actual jurisdiction or um districts don't matter. If you're talking if you live in two separate school districts, whoever has final is going to be where the kid goes to school. >> And medical, you know, unless your kid has a special medical need and and we see that where where children have special needs or they've got um autism or some special special medical issue that requires constant decisions. But if you've got a healthy child, um medical usually is not that important because if there's an emergency, there's emergency, whoever has that parent when that emergency happens is going to get the emergency care that child needs. You have to remember we're talking about non-emergency medical. That's the actual terminology, non-emergency medical. If there's an emergency, we're always going to act immediately for whatever is best for the child. Um, and then past that, again, you still 99% of the time are going to follow a doctor's advice. This isn't a scenario where if a doctor says, "This is what needs to happen." One parent can just be like, "That sounds expensive. I'm not going to do that." Right? We we still would have recourse. You could still seek court intervention if it, heaven forbid, got that bad. Um, this is more like something that is elective. Um, and one parent thinks that it's important and one doesn't. I mean, having a mole removed from a girl's face. Um, mom thinks that that just is going to affect her for the rest of her life and give her self-confidence issues and it's very important that we have that taken off. And dad's like, I'm not putting my child under anesthesia for absolutely no reason. That's elective. She's beautiful like she is. The kid's not old enough to the side. So certain things like that truly non-emergency doctor's not going to weigh in and say whether that's ne medically necessary or medically not necessary true elective or just decisions and then if the parties can't agree somebody breaks the tie. >> That's right. And then third would be extracurricular activities which can get a little hairy. Depends on the parents. Some parents are very much on the same page with what little Johnny needs to participate in or what sports Sarah needs to participate in. Um, and other parents can be more on the opposite sides. I know, uh, the decision to play football can always be a big decision in families. And one parent may be overly protective of the child and the other parent is all in on the sport and wants to see their child play even more than the child might want to participate in the activity, which brings me into another point. Sometimes maybe you should listen to your kids and get their input on what sports they want to participate in. And good parents do obviously uh consult with their children. But in the event that you can't make a decision, then one parent would technically get to decide what activities uh the children participate in. And then lastly, religion. Um which used to be super important uh for better or for worse, and I find myself saying that a lot on this podcast. It's not as much anymore, and that's just because our society has is changing. Uh things are more acceptable now. They used to be. It's not as much of a conservative society as it used to be. It used to be that religion really was a big deal and a judge would say if you've got final decision on religion then you get to dictate what uh church that child goes to and what religion they practice and you know baptisms and the whole nine yards. And pretty much what I'm seeing now is pretty uniform except for a few exceptions. Uh both parents get to really have religion and you can take your child to whatever church you want to during your parenting time independent of what church the child may go to with the other parent. >> Yeah. I think judges have started to understand that restricting children's access or ability to participate in a religion therefore restricts that parent to a degree and that's not what we're here to do. Um, I will say it is uncommon that two people ever got together and had a child together and are so vastly different like that. Absolutely. Like dietary restrictions related to religion or um not being allowed to have immunizations and things, those people don't generally get together and make a kid. So even though we can think of scenarios where it would be a really big deal um for one or the other, chances are y'all at least started close to the same page when it came to religion. So you have to remember that. So giving your child access and exposure to other options of religion that may not be yours but aren't necessarily contrary to yours is a good thing. >> Absolutely. Last thing I want to say about legal custody before we move on to parenting time is if you don't have joint legal then we're talking about a sole custody situation. And we won't spend a lot of time on that because you don't see it a lot but you do see it. So, if you don't have joint legal, then that means you're pursuing something called sole custody. And sole custody, if you have it, that means you do not have to consult with the other parent before you make a final decision. It means that other parent does not have equal access to records. And it also means that if something happens to the parent that has sole custody, that child may not even automatically go to the other parent. It may go to whoever may be named in the other parents will. So, when is that appropriate? Because people come in all the time and they're like, "I want full custody or I want sole custody." And they don't really know what it means. Sole custody is appropriate when you have a parent that may have, for example, an addiction issue. So, if you've got a parent that is a raging alcoholic or a drug addict, or let's say you got a parent that's just not involved, they are absent. They've disappeared. They never exercise parenting time. They never check in on the child. They never show any interest. They're not at school events. they're not trying to participate in decision-m authority. Well, then why should you have to constantly be reaching out to that parent to try and get their opinion and keep them up to speed if they're not even seeing the child and haven't had a relationship with that child in years? So, >> yeah, but we're talking about legal level of abandonment because how many moms are going to tell you, "Oh, he's an absent father. He's not doesn't participate because he only sees them, you know, two nights a month or something." I'm talking you don't know where the guy is. >> Absolutely. >> Can't contact him. Don't know. Could have been deported. Might be in jail. We have no idea. I don't know where his mama lives. I don't know anything about him. That sort of level of abandonment, not just he's not doing the things I want him to do. >> That's it. >> That's it. So, let's change gears. Let's talk about really physical custody, which ties into parenting time. So, when we're talking about physical custody, we're really talking about parenting time. We're talking about where does the child live and what amount of parenting time uh does each parent have with the child. If you have a parent that has what's called primary physical custody, then usually that means that that parent has the majority of the parenting time. Um, if you've got a joint physical custody situation, that usually means that we have an equal sharing of parenting time. And equal, there's a lot of different ways to do that. My favorite way would be a week on week off type of schedule. A lot of parents that are um helicopter parents hate that cuz like I can't go seven days in a row without seeing my child. And we can break that up. You can have a midweek, right? So, let's say it's from Sunday at 6:00 to the following Sunday at 6. Well, if it's not your week, then you get Wednesday overnight so that you don't have to go seven days in a row without seeing the child. That's my favorite schedule. That's what I think most judges like, but there are other ways to do it. Some parents are just like, I cannot go that long without seeing my child. And they want to do this two3 schedule, which is basically dad's got mon every Monday and Tuesday. I'm using as an example. Doesn't mean dads always get every Monday and Tuesday, but for example, one parent has every Monday, Tuesday. The other parent has every Wednesday and Thursday, and then we rotate the weekends. Some parents do that. There are parents that can successfully pull it off. But Christine, why do you not like that schedule? Or maybe you do. >> I do not. Um, in my opinion, when you're setting up a schedule where children bounce back and forth a lot, you're doing that for the parents and not for the kids. Generally, and I know there are exceptions to everything, but generally children love both parents. Children want to spend time with both parents. If it was up to the kid, probably everybody would still live in the same house. So, they want to have equal time with their parents. Yes. But do they want to disrupt their entire schedule until they're 18 years old to accomplish that? No. They probably don't. So, if you're thinking kid- centric, probably week on week off is the healthiest and gives them the best routine. I also want to remind parents that this concept of not seeing your child for seven days is not true. If that child is involved in any activity, they play baseball, you both go to practice, you see the child, you want to go have lunch with them at school, you do that, right? Just because they don't sleep in your house, parenting time with one parent or the other parent is just who's in charge of getting them where they need to be that day. It is not a prohibition from the other parent to be involved. So, if there is an activity or an event that happens on the other parents time, you are just as involved or you better be. If you're an equal parent, you better be showing up to just as much. Now, I understand that everyone has schedules and if it's just your week that okay, he's going to drop him off at practice, I'm going to drop him off at practice. I'm just saying you don't have this concept of I don't have any contact or access to we have FaceTime, we have videos. Um there is plenty of opportunity to interact with your child when they are in the other parents household. And you know what? If you encourage that when the child's in your household, it's going to be reciprocated. >> It's a good point. And this and we're talking about a joint physical situation. So, let's talk about a primary physical situation, which again means one parent's going to have the majority of the parenting time. That could be for many reasons. Usually, it's because that parent has always historically been the primary caretaker and they have the best ability, whether it's in a matter of flexibility of schedule um or closeness to the child. There's a million different reasons, but for whatever reason, it has been decided or agreed upon that one parent should have a majority of the parenting time. That doesn't mean that the other parent doesn't have any parenting time. And the schedules range, folks. I'll tell you, back in the day when I first started practicing over 20 years ago, which sounds like a long time now, if you didn't get uh primary custody, parenting time was every other weekend, Friday at 6:00 to Sunday at 6. And there were not there was not much deviation from that. You had every summer >> Yeah. two weeks during the summer, every other weekend, Friday to Sunday. If you were lucky, you might get the midweek and then half the holidays >> or a dinner visit. Yeah. >> Or Yeah. Or a dinner visit. So, that is the kind of we we used to call that a standard parenting time schedule. Obviously, that was called a standard parenting time schedule, believe it or not. There really is no standard parenting time schedule. Now, courts have very much expanded what is considered standard. And what I would tell everybody is that schedules can vary greatly depending on what works best for the family. Um, if a parent that doesn't have primary physical custody is an involved parent and they've got the flexibility with work and their schedule to exercise more than Friday to Sunday, they're probably going to get it >> most likely. Yeah. >> And we see those schedules range anywhere from every other weekend, Thursday to Sunday. It could be Thursday to Monday. It could be every other weekend Thursday to Tuesday. And then during the off week, you get Thursday overnight. And you've got half the summer and half the holidays. And guess what? Now you've just got about 45% of the total parenting time. >> That's right. And what's interesting is, and this is getting off subject a little bit, but because the schedules are being expanded so much from what used to be called standard, we actually have a new law that's going to be taking place in Georgia beginning of next year, right? >> That will automatically calculate the amount of parenting time that the parent that does not have physical custody has, and they get an automatic reduction off their child support to account for that increased parenting time. That's a different episode, folks. We're not going to talk about child support. But I say that just to mention that there is no standard anymore. And most parents, I won't say most, a lot of parents are able to expand their time all the way up to something that may be very close to 50% if not 50%. >> Right? And I will give my speech on this podcast that I give to virtually every parent client that I have. Um, when you are setting up your next phase, your life after divorce phase, remember that time with your children, you have to justify quality over quantity. Um, we are looking at maximizing your quality time with your children. I don't like getting in the weeds of but it has to be exactly 50/50. That's fighting over quantity and we don't do that. These are children. These aren't some sort of commodity, right? This is your child. um think of them when it comes to that. So the whole concept of like I I have to have that one extra overnight like or else for what I mean for them to come home and brush their teeth and sleep in in the bed at your house instead of the bed. That's not always quality time. Especially if you work a schedule where you already don't get up till 9:00 p.m. and it's past their bedtime. So remember, just because you don't have 50% of the time doesn't mean some parents that are not the primary parent actually have more of the quality time available than the custodial parent. The custodial parent gets burdened with quantity time and the non-custodial parent a lot of times gets to maximize the quality time. Also, if a judge has determined that one parent is primary and it's not you, that was not necessarily a judgment about your parenting skills by any means. that was mostly based on availability and flexibility. Um, and again, proximity because if you're living anywhere that's not in the same school district, it's not going to make sense to have 50/50. That's not saying that you did something wrong. Um, if you're even if we encourage you to settle for less than 50%. It's not because Jared or I think that you're somehow an inferior parent. Well, and I'll also say just because you've historically maybe been the primary caretaker and you've exercised most of the parenting time in a divorce situation, don't be afraid to give the other parent more parenting time than what they've historically exercised, especially if they're willing to do it and they're capable of doing it. If they are if they've got the flexibility in their schedule and they're a good parent and they've got a great parent child relationship, why not have the break? I had a client I met with a few weeks ago and she historically was a primary caretaker and I asked her as I do with all clients, you know, what would you like concerning custody parenting time? And she looked at me and she said, I want a 50-50 schedule. And I said, really? I said, why? You've clearly historically been the primary caretaker. She gave me the most honest answer a client may have ever given me. She looked at me, she said, because I want him to share in the responsibility. >> Yeah, I deserve a break, too. >> I deserve a break, too. I Because it's worked. Some of the time that's why the divorce started to begin with. Yes. Because I'm the one doing all the heavy lifting and I'm handling all the responsibilities and I don't want that life anymore. >> Keep in mind if you give one parent just every other weekend, they get all fun time. >> You're doing all the school stuff. You're shuffling them here and there where they need to be. You're doing homework. I mean, you're doing it all and then they just get to have fun time on the weekend. So, I love that answer. I want him to share in the responsibility. And by all means, he did. >> And she's loving her breaks every other week. Uh, I'm not saying that works for everybody. I'm not saying automatically do 50/50 in every case, but it's certainly something to consider. If you've got a parent that's willing to step up and take on some of that responsibility, that might actually be a blessing in disguise. So, don't be afraid to give parenting time in cases. Last thing we'll cover in this episode is modification. That's we've talked about that in more detail in a different episode, but just know that custody, parenting time, always subject to modification. If you have a major change in circumstances, and that could be a million different things, either because somebody's moved away or maybe somebody um has a conduct issue that surfaced or maybe they're in a new relationship with somebody that's a bad actor. Million different reasons. Just know that you can always come back to court and modify custody and parenting time based on the situation that's changed at hand. So, if you're fighting for time, uh you're you're fighting for decision-making rights. Clarity is power. Be sure to subscribe to Ox and Dine Law Podcast. 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