One of my favorite divorce songs is Sting’s “I’m So Happy That I Can’t Stop Crying.”  One of the themes of the song involves the roles of fathers after divorce.  The singer, “saw my lawyer…Mr. Good News; he got me joint custody…and legal separation.”  There’s no legal analysis in the song about the meaning of joint custody and, though I’ve addressed it before, enough clients and potential clients have raised questions that I thought it a good idea to review.

When normal, otherwise non-criminal parents divorce, there are two types of custody for which they, along with their attorneys, must address: legal custody and physical custody.  Legal custody is almost always held jointly.  This means that even though divorced, both parents have a say in their children’s lives.  Divorced parents must still make the important decisions about their children in consultation with one another.

Physical custody simply means where the children live on a daily basis.  It is less likely to be held jointly, especially if the children are school-aged.  The need for a regular schedule makes joint physical custody more and more difficult as the children grow up.  The parent who does not live in the home with the children is the non-custodial parent and should be guaranteed a minimum visitation schedule with the children in his or her own home.  The non-custodial parent is still a parent in every legal way and the custodial parent cannot control what goes on during visitation periods, so long as the children aren’t otherwise being harmed or placed in danger.

This back and forth can be quite difficult for both parents, but it has been my experience that the custodial parent has a little more trouble giving up control when the children are away.  Back to Sting’s song, the singer mentions that the wife/mother who had an affair and left him, made a conciliatory gesture by offering to let him “come and baby-sit some time.”  If you know the song, the video is terrible and has nothing to do with the lyrics of the song.  Here’s a link:  https://www.youtube.com/watch?v=LI8khooPyJk.

All of that being said, there are ways to draft your divorce agreement to allow for negotiation and agreement rather than constant conflict going forward.  Communicate with your attorney.  Make sure he or she knows about your post-divorce custody goals.  Once a final order is in place, it becomes exponentially more difficult and expensive to correct an error, especially if the error results in an advantage to a parent willing and able to litigate to maintain it.

If you are considering divorce and don’t have an attorney, you need one.  You can contact me by email at ron@mcbaylaw.com, or telephone at (251)445-0891.  The initial consultation is free and I will give you up-front, flat fee pricing, so there are no financial surprises along the way.

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