Dividing Brangelina — The Myths of Joint Custody

The specters of divorce and child custody are now lurking over Hollywood’s most celebrated couple.  After two years of marriage, Angelina Jolie has filed a dissolution of marriage (divorce) action in Los Angeles.  According to TMZ http://www.tmz.com/2016/09/20/angelina-joile-files-for-divorce-brad-pitt, it has to do with the couple’s six children.

Angelina is reportedly asking for joint legal custody and sole physical custody.  Much like Hollywood’s magic — those two terms are myths.

LEGAL CUSTODY

Legal custody gives a parent the legal right to make legal decisions and give legal permissions.  Parents with legal custody:

  • have access to the child(ren)’s medical and education records
  • may seek medical and/or psychological treatment for the child(ren)
  • can give permission for the child(ren) to obtain a driver’s license or passport
  • may give permission to the child(ren) to join the military or get married before age 18.

A lot of parents get hung up on this label of “Sole Legal Custody.”  But it is meaningless, as shown below.

Why Sole Legal Custody?

Sole Legal Custody (as implied) gives one parent the power to make legal decision and give legal permissions without having to consult with or get permission from anyone else.  Most often a court awards Sole Legal Custody when one parent is unable to regularly make decisions — by example if that person is deployed with the military, if that person is missing, or if that person has a severe addiction that causes their judgment to be impaired.

Why is Sole Legal Custody a Myth?

Although legal custody includes the rights and responsibilities explained above, each of those rights can be shared in a sole legal custody arrangement or given to only one parent in a joint legal custody arrangement, effectively making them the same order.

For the purposes of the examples below, Angie and Bran have six kids — Atom, Barley, Catcha, Dolph, Ernest, and Frienda.  (Names have been changed to protect the innocent)

Sole Legal Custody that is Really Joint Legal Custody

EXAMPLE: Angie is awarded sole legal custody.  The court gives Bran the right to access records, and requires that Angie and Bran agree on where the kids will go to school and in choosing Catcha’s therapist.  The document says Angie can act alone but then gives the meaningful exceptions that cause this “Sole Legal Custody” situation to effectively be Joint Legal Custody.

JOINT LEGAL CUSTODY THAT IS REALLY SOLE LEGAL CUSTODY

EXAMPLE: Angie and Bran share joint legal custody.  The court gives “final say” to Bran for any decisions for which the parties consult each other but fail to reach an agreement.  That “final say” should just read Sole Legal Custody.  It is effectively giving Bran the permission to make all the decisions — if they agree, then his choice wins; if they can’t agree, then his choice wins.

The Myth Does Not Matter

I meet with countless parents who insist, “I must have Sole Legal Custody!”  The title of Sole Legal Custody is very literally meaningless.  The concern should be not about the category and should be entirely about the details — what rights do you have solely? what rights do you share? for what rights do you have final say?  Those details are what have impact and meaning so far as legal custody is concerned.

PHYSICAL CUSTODY

Physical Custody very literally defines who has custody (possession and care) of the child(ren).  For practical purposes, Physical Custody is a euphemism created by California lawmakers (the same ones who can’t call divorce “divorce” but instead call it “dissolution”).  In the past one parent has had “custody” while the other parent had “visitation.”  The term “Physical Custody” now defines that period of time for each parent when the child(ren) are in their care and control.

What is the Advantage of Sole Physical Custody?

The only time Sole Physical Custody has any meaning is when the other party has no visitation (or perhaps only supervised visitation).  Even on orders where the slimmest of visitation is provided, courts will most often award Joint Physical Custody — each parent has physical custody during the timeshare outlined in the order.

Why is Physical Custody a Myth?

As we discussed above with Legal Custody, when it comes to Physical Custody what is important is not the term itself (“Joint” or “Sole”) but the details on when the children are with each respective parent.

SOLE PHYSICAL CUSTODY WITH VISITATION IS THE SAME AS JOINT physical CUSTODY

Using the same family as above:

SCENARIO A: Bran gets Sole Physical Custody, and Angie sees the kids on Tuesday and Wednesday nights with alternating weekends.

SCENARIO B: Bran and Angie have Joint Physical Custody where Bran has the kids Sunday and Monday nights, Angie has the kids Tuesday and Wednesday nights, and they switch weekends.

The two scenarios are different in title (Sole v. Joint), but exactly the same in “timeshare” (the amount or percentage of time the child(ren) spend with each parent).

From a financial perspective “timeshare” is the only relevant part of custody and visitation.  Time share is the pivotal point used to determine child support.

Custody for the Pitts

Child support is not likely a factor when it comes to the Jolie-Pitts.  Each parent has plenty of funds available to take care of the basic needs of the children without question.

Angelina is asking for Joint Legal Custody.  This shows awareness in the importance of each parent having input.

Angelina is also asking for Sole Physical Custody.  She reportedly doesn’t like the way Brad parents.  This is so typical of divorcing couples.  Rarely do two parents who live together and parent together have identical parenting styles.  If you don’t know this, your kids do — this is why they know which parent to ask for a sandwich and which parent to ask for the car keys;  this is why they know how to “spin” their requests to have the greatest chance of getting what they want (or getting out of trouble).

Might Brad have anger issues and might he be a bad parent?  He might.  Does he parent differently than Angelina — most definitely.  And that’s okay.  Ultimately two factors determine custody: 1) safety of the children, and 2) frequent and continuing contact with both parents.  If this case is typical, both parents would likely be awarded Joint Legal and Joint Physical custody with a roughly 50/50 timeshare.

Conclusion

The euphemisms of Joint Legal Custody and Joint Physical Custody are myths in effect, but they aren’t without merit. Joint Custody takes a “mine” factor out of the divorce — it’s no longer “I won custody” or “the kids are mine, but you can see them,” as it had been in the days of Custody with Visitation.  Where each parent is titled as and viewed as a “custodial parent”, each is recognized for their contribution to the love, upbringing, and existence of the child(ren).

Additionally, it encourages parents to work together (co-parent) for the sake of the child(ren).  That is the ultimate goal of any custody case because the kids grow up, and they move out, but they never stop being your kids.  Parenting may legally take 18 years, but it morally and lovingly lasts a lifetime — a lifetime when those kids have kids and those parents are grandparents.  So getting along, and working together, and sharing “Joint Custody” in title are all good things as lives move forward.

Joint Custody is a myth, but I submit to you that it is a myth with good purpose.