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”).

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.

“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.

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