The Primary Custody Myth
January 29, 2018 § 5 Comments
Many custody agreements provide for one party to have “primary physical custody.” Many judgments incorporate similar language. You will find the term sprinkled throughout appellate decisions.
The fact is, though, there is no such thing as primary custody.
A recent COA case illustrates just how the concept can lead to heartbreak for at least one of the parties. Judge Fair, writing for a unanimous court in Gaddis v. Wilkerson, decided January 9, 2018, laid out the law on the point:
¶7. Richard and Tracey have shared joint legal and physical custody of Logan since the original divorce decree. Joint physical custody does not require equal time with each parent, but it does require that the parents have “significant periods of physical custody . . . to assure a child of frequent and continuing contact with both parents.” Miss. Code Ann. § 93-5-24(5)(c) (Rev. 2013).
¶8. Tracey contends that the chancellor erred when he modified the schedule within the custody agreement. At trial and on appeal, both parties have incorrectly stated that Tracey has primary physical custody of Logan and that Richard has visitation. The original custody agreement, the 2013 modified custody agreement, and the appealed 2016 modified custody agreement all state that Tracey and Richard are both custodial parents – an important distinction for Richard. Neither party is categorized as having “primary physical custody,” nor is either party awarded visitation. Further our supreme court has emphasized that the term “primary physical custody” is not specified in section 93-5-24 and “cannot act to transform such express ‘joint physical custody’ into de facto sole physical custody with liberal visitation.” Porter v. Porter, 23 So. 3d 438, 446-47 (¶22) (Miss. 2009).
In other words, if you create a joint legal custody agreement, the court will enforce it as such. Even if Tracey had been expressly designated as the one with “primary custody,” Porter holds that the term does nothing to change the effect of joint physical custody. I suggest that the best practice is to banish the term from your documents.