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In determining child custody, it's important to know the legal terms

Legal Matters: A column to help everyone understand laws

Many of my clients have issues with former partners regarding child custody.

In order to discuss and make good decisions about how to handle such questions with an ex, it is important to understand some basic legal terminology, given that unintended consequences and unproductive arguments may occur when former partners don’t understand the legal terms.

Terminology

Contrary to what many people believe, there is no presumption in Iowa that parents are entitled to an equal amount of care time with their child.

While there is a presumption in favor of joint legal custody, this term does not mean the same thing as “physical care” or “joint physical care.” These are all legal terms defined by Iowa law.

Joint legal custody refers to the right and responsibility of parents to consult with one another on decisions affecting a child’s legal status, medical care, education, extracurricular activities and religious instruction.

Iowa law presumes and courts require separated parents to make decisions for their child this way unless the safety of a parent or child would be jeopardized by expecting it. In these rare cases, a grant of sole custody to one parent may be appropriate. Even in cases of sole custody, however, visitation is likely to be ordered.

The term physical care, or primary physical care, has a very different meaning.

This is the right and responsibility to maintain a child’s home and provide routine care for the child. A primary physical care provider can be established even when joint legal custody is granted to the parents.

When a primary physical care parent is identified, the other parent is considered a non-custodial parent and receives visitation. There are primary physical care arrangements, however, where a non-custodial parent may have almost equal care time for the child.

Even when joint legal custody is established, the primary care parent has the right and responsibility to provide the child’s primary home and make routine care decisions for the child. When there is a difference of opinion between parents on a child’s routine care (such as what clothes the child wears, when they go to bed, or who they associate with), greater weight may be given to the primary physical care provider’s position in court.

Joint physical care means an award of physical care to both parents. When joint physical care is awarded, no primary physical care parent is established, and both parents have equal rights and responsibilities. Typically, joint physical care means an equal or close to equal division of a child’s care time between the parents. Neither parent is given a superior right to decide routine care issues.

Primary physical care

A parent with primary physical care receives a legal presumption in any future custody dispute that preserving the child’s connection with them is in the child’s best interest.

As a result, that parent has the right to change the child’s place of residence or the child’s school district.

If the non-custodial parent objects, they must establish that the primary care parent’s decision is without good reason or that the impact of the decision will so detrimentally affect the child it is not in the child’s best interest and that, under these circumstances, they are now better able to provide care for the child.

This is a very difficult burden to carry. Further, it may be impossible to obtain a court order preventing such changes before they occur.

The designation of primary physical care or joint physical care in a final court order also impacts how child support is calculated under the Iowa Child Support Guidelines.

The law requires that sworn child support guideline work sheets be submitted with requests for final orders in divorce and paternity cases.

In cases where primary physical care is granted to one parent, that parent typically receives child support, subject to discounts based on the number of overnights the non-custodial parent has the child in their care.

When joint physical care is given, either parent may end up paying child support to the other, depending on their income.

As can be seen, the legal terminology is not easy to understand and the terms used in custody orders will carry weight in future child rearing disputes if they occur.

Since most custody cases are decided by agreement, the drafting of custody agreements has become a specialized area of law practice. You should consult with a lawyer who specializes in family law when custody problems develop.

A future article will address how Iowa judges decide child custody issues when separating parents cannot agree on custody and physical care for their child or children.

Matt Brandes is a family law attorney with Simmons Perrine Moyer Bergman in Cedar Rapids. Legal Matters appears once a month in The Gazette.

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