No Such Thing as Primary Custody

July 22, 2019 § 2 Comments

In footnote one to the COA’s decision in Kaiser v. Kaiser, decided June 11, 2019, Judge Corey Wilson offers the following:

As this Court has noted, “there is actually no provision under the statute for ‘primary’ physical custody.” Shows v. Cross, 238 So. 3d 1224, 1227 n.2 (Miss. Ct. App. 2018) (quoting Rush v. Rush, 932 So. 2d 794, 796 (¶9) (Miss. 2006) (discussing Miss. Code Ann. § 93-5-24 (Rev. 2004)). But lawyers and judges commonly use the phrase. “As in this case, the phrase ‘primary physical custody’ is often meant to describe physical custody in one parent, with the other having specified visitation rights.” Id.

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.

Use of the term is not objectionable merely because there is no provision in law for it; as I pointed out previously, it can work considerable mischief, particularly where one or both of the parties believe that the term “primary” confers some heightened status, only to learn to their chagrin that it adds nothing. (Chagrin is a technical legal term meaning “pissed off at the lawyers”).

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§ 2 Responses to No Such Thing as Primary Custody

  • Susan says:

    Do you have any suggestions for the label to apply to the non-custodial parent? The term “visitation” that is often used is so demeaning to that parent. We have experimented with some other terms, but would appreciate if you have seen any terms that work well.

  • John H. Downey says:

    I believe employing the term “primary physical custody” is useful, because it not only makes it clear what is being done with the children, but also causes us to explain to our clients the meaning of “legal” and “physical” custody, so they sort of understand what rights they and the parent have and what practical effects the set up causes. I think that it is inaccurate to say that the parent who has physical custody most of the time has no more power than the other in determining child rearing issues and outcomes.

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