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  • Catherine Becker Good

Is Physical Custody Obsolete?

“Custody” is a term that everyone is familiar with. It is at the center of many contested divorce cases. But is “custody” now a term of the past?

The newest trend in family law is the elimination of the term “physical custody.” The Probate Court judges now prefer to use the term “parenting plan” to describe how parents allocate their time with their children. Why are courts encouraging this change in terminology? The term “physical custody” is a highly charged phrase and often invokes high emotions within the parents. Parents tend to attach a great deal of weight to the term “physical custody” and will often battle over who will have the children the majority of the time so that they can claim the title of “physical custody.” Oftentimes cases get stuck on this point and are unable to resolve because neither parent is willing to concede on the issue of physical custody of the children. By eliminating this term and replacing it with the more general phrase, “parenting plan”, the courts are often able to remove the emotion and facilitate a settlement.

The term “parenting plan” also coincides with the evolution within the Probate Court toward shared custody plans. Historically, children would primarily reside with one parent and would spend time with the other parent during limited, designated periods. The non-custodial parent often saw their children less than 33% of the time. That traditional formula has changed, with more and more families opting for a shared schedule. In fact, some courts go so far as to presume that the parties should each have the children 50% of the time. In reality, many couples come up with a schedule that is somewhere in-between 33% and 50%, and that works with the parents’ and children’s schedules. Given this transition toward a more equal parenting schedule, the term “parenting plan” is perhaps a more accurate way to generically describe the notion formerly known as “physical custody.”

The law is supposed to evolve over time to reflect the current social norms. That is exactly what the Probate Court is trying to do by constantly changing their rhetoric and by applying principles that reflect changes to the family dynamic within society.

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