“PRIMARY PHYSICAL”: A CUSTODY CONUNDRUM
August 3, 2010 § 7 Comments
Many lawyers use the term “primary physical custody” in their property settlement agreements. For example: “The parties shall share joint legal custody, and wife shall have primary physical custody of the minor children.”
If the intent was for wife to have exclusive physical custody, use of the word “primary” in that sentence is probably harmless, if meaningless.
Consider, however, language in a property settlement agreement that provides, “The parties shall share joint legal and physical custody, with wife to have primary physical custody and husband to have secondary physical custody.” For lawyers looking for a way to mollify a father demanding custody or at least joint custody, and a mother insisting on sole custody, such language sounds like a nice, painless way to make the father feel included in the physical custody loop while leaving the mother in first place, right? Think again.
In Porter v. Porter, 23 So.3d 438 (Miss. 2009), the parties’ agreement used the “primary” and “secondary” language above. The Mississippi Supreme Court pointed out that the joint custody statute includes no definition of the terms “primary physical custody” or “secondary physical custody.” The court held that the term “primary physical custody” could not be used to transform what was expressly a joint physical custody arrangement into a de facto sole physical custody arrangement. In other words, the use of the language “primary physical custody” has no legal meaning in our law, and its use may import dangerous ambiguity into your otherwise carefully-crafted agreement, leaving it open to an interpretation neither you nor your client ever intended.
Imagine having to explain to your client who thought she would be “primary” in the custody arrangement that she and her ex-husband are on an equal custodial footing. Do you think she might be a bit peeved at her attorney?
In my opinion, the same result as in Porter would be reached in the situation where the parties agreed to this language: “The parties shall share joint legal and physical custody, and wife shall have primary physical custody.”
And the same result with this language: “The parties shall have joint custody, and wife shall have primary physical custody.” The reason that this language would produce the same result is found in § 93-5-24 (5) (a), MCA, which states that ” … ‘joint custody’ means joint physical and legal custody.”
I believe that attorneys often operate under the mistaken belief that “primary physical custody” designates the person who has final decision-making authority in a joint custody arrangement. The Porter case tells us that is not so. If you want the wife to have final decision-making authority, use language to this effect: “The parties shall share joint custody of the minor children, and wife shall have final decision-making authority in matters of the children’s health, education and welfare.”
Practice Tip: Avoid using the term “primary physical custody” or any other term not defined in the statute when crafting your custody provisions.
The Better Chancery Practice Blog 
[…] I posted about the misuse of the term, and how it can hurt your client, in an early post ‘way …. […]
[…] legal” and “primary physical and legal” custody have no legal meaning in our law. You might recall that I posted here about it ‘way back in 2010. It’s not that big a deal in most cases, but, as I pointed out in that previous post, it can […]
[…] One quibble: Are we going to keep talking about “primary physical custody” or “primary custody” when the MSSC has told us in no uncertain terms that the word “primary” when used in conjunction with any form of custody has no meaning in the law? Porter v. Porter, 23 So.3d 438 (Miss. 2009). I posted about Porter and its pitfall at this link. […]
[…] In the case of Strait v. Lorenz, handed down January 6, 2015, the COA affirmed a chancellor’s decision to modify custody based on Travis Strait’s long-standing denial of visitation to his ex-wife, Kristy Lorenz. The parties had agreed in their irreconcilable differences divorce that they would share joint legal custody of their daughter, Jane, and that Travis would have “primary physical custody.” […]
[…] sole ground of irreconcilable differences. They shared joint legal custody, and Michael got “primary physical custody” of the two children, who were then ages 7 and 3. The parties’ PSA included the […]
[…] As for the Crider court’s reference to the term “primary custody,” you should keep in mind that the addition of the term “primary” to custody adds no legal meaning whatsoever. You can read a post on that point here. […]
[…] important reminder: I posted before about the danger of relying on the term “primary physical custody.” Designation of one parent as “primary” physical or legal custodian has no […]