“PRIMARY PHYSICAL”: A CUSTODY CONUNDRUM

August 3, 2010 § 6 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.

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