The Primary Custody Myth

January 29, 2018 § 6 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.

I posted about the misuse of the term, and how it can hurt your client, in an early post ‘way back in 2010.

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.


§ 6 Responses to The Primary Custody Myth

  • […] The fact that there is no such thing as “primary” physical custody is a concept about which I have posted before. A post with links to previous posts is at this link. […]

  • JacqulineFinchWalker says:

    If you feel called to do it, could you do an article on being an litem? I am interested in it, and would love your take on it, please sir?

  • JacqulineFinchWalker says:

    Hi! thank you, Judge Larry! what term should I put in PSA’s then, pleas sir? I am a parlegal, but will go to law school one day. God has called me to do it Thank you for this blog. Mr. Flip Phillips is from my home town and has been a family friend for years, and was wonderful to my family when my grandfather died without a will…. it was a hot mess.. Mr. Flip seemed so thankful about your blog post about him working on class-act suits in MS! I am so thankful for your blog. I try to read it as much as I can, and it helps me to not feel like I am just stuck in a small town answering the phone, and getting screamed at on PSAs. I pray for many many blessings on you and your family. Congrats on your blog award. ” they may think you have it all but you are just getting started”

  • susan steffey says:

    I wish we would come up with a better term than “visitation”. It is demeaning to the role that supportive and active non-custodial parents play in their children’s lives. Fortunately, most of our clients share physical custody as the courts, lawyers, and parties seem to increasingly recognize the importance of both parents actively raising children.

    • JacqulineFinchWalker says:

      wow, that’s cool I didn’t know that ” parties seem to increasingly recognize the importance of both parents actively raising children.” I NEVER see that. that’s interesting. you must have good clients/ or clients who asked like they are grown and remember it takes two. you are blessed. This is what kids need. I want to take what good news you said and say ” yes there are some good people in the world and to be thankful.” I said a prayer for all of your clients and for your family. I can’t imagine the stress of being of family law attorney.. and one who is diligent… wow. God will reward you.

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