(Scene from “I Am a Fugitive from a Chain Gang,” Warner Bros., 1932)
Before closing down the custody litigation side of my practice, I had opportunities on several occasions to hear judges attempt to explain why it is necessary, after a divorce, for one parent to be designated the “custodian” while the other parent must be demoted to the status of a “visitor.” Of course, none of their explanations made any sense.
To deflect resistance on the part of some parents to being relegated to visitor status, one judge I knew asserted that there is no qualitative difference between physical custody and visitation; that “custody” is merely a label. During pretrial conferences in chambers, if I was representing the father, this judge would turn to me and say, “So your client is all hung up over a label, huh? He’s going to waste his children’s college education fund fighting over a label.” I never heard this judge pose the same question to a mother who was fighting for the “mere label” of custody.
I remember turning to this judge once and asking, “Well, if it’s just a label, then why can’t the mother just throw my client a bone and agree to share the ‘label’?”
I never got an answer to my question. Why? Because he knew very well that custody is more than a mere label. It is true that the rights of noncustodial parents are stronger now than they were in the twentieth century. The increased legal protection for the rights of noncustodial parents has not obliterated the distinction between custody and visitation altogether, however.
Why the custody “label” still matters
Historically, only a physical custodian of a child had a right to receive child support. The right was contingent on the label; it was not based on the amount of time a child spent with a parent. Even if a court order granted both parents exactly equal amounts of time, only the parent with the custody “label” could claim a right to receive child support payments from the other parent
This was due, in part, to the way child support laws were worded. They usually specified how much money a “noncustodial” parent must pay to a “custodial” parent. From a historical point of view, this made sense, conceptually at least. Visitation was merely a right to spend some time with a child. A custodian, however, had the responsibility for the care of the child (providing a home, clothing, food, etc.)
It is sometimes asserted that the law did not really treat custodial and noncustodial parents differently; that each had the same support obligation, but custodial parents were permitted to discharge their obligation by providing direct support. On closer analysis, however, the equivalency argument does not hold water. A custodial parent is only required to provide a minimum level of care necessary for the child’s survival, i.e., sufficient level of care to avoid a charge of criminal child neglect. A noncustodial parent must provide more than a minimal amount of care. In most states, the amount of care the noncustodial parent must provide is keyed to the amount of his income: the more income he earns, or has the ability to earn, the more care he is legally obligated to provide, even if it is far in excess of what is needed to meet the child’s needs – that is to say, even if it is far more than what is needed to avoid a charge of criminal child neglect. If he is unable or unwilling to provide that level of care, then the state may garnish his wages, suspend his drivers license, suspend his professional license, seize his assets, deny him a passport, and send him to jail. None of these things can be done to a custodial parent solely on the basis of failure to spend more money on a child than what is required to meet the child’s basic needs.
In Kammueller v. Kammueller the Minnesota Court of Appeals had occasion to consider whether the system of classification in which a parent with more than 50% of the parenting time is prohibited from seeking child support from the other parent solely because a court has labelled him “noncustodial” violates the Equal Protection clause. The Court held it did not. Why? Because a custodian has a legal duty to provide direct care for a child; a noncustodial parent with visitation does not.
Some states, like Minnesota, have abrogated the rule that only custodial parents may have a right to receive child support from the other parent. This is still the law, however, in others.
It is generally more difficult to modify custody rights than visitation rights. Modification of custody may require proof of something extraordinary, such as endangerment, impairment of health or emotional development, or proof that a child has been integrated into the noncustodial parent’s home with the custodial parent’s consent. Modification of visitation, on the other hand, usually only requires a showing that a desired change is in the child’s best interests.
Some states have begun to impose the higher standard on motions to make significant modifications to a visitation schedule, too. Nevertheless, the fact remains that any modification of the custody “label” is deemed “significant,” while only certain kinds of modifications of visitation rights are considered significant. This, in itself, suggests that there is something inherently significant about possessing the custody “label.”
“The final say”
A grant of joint legal custody is supposed to mean that the parties are to make decisions jointly. In several states, however, courts will give a parent with sole physical custody “the final say” in those cases where the parties are unable to reach an agreement on a decision. This may not be the case in every state anymore, but there are places where it is still either the law of the state or a custom of local courts.
Federal and state income tax laws generally give the custodial parent, not the noncustodial parent, the right to head of household filing status, and to claim the child as a dependent, the child tax credit, the exclusion for dependent care benefits, the earned income tax credit, and the child-care credit. This may be true even if the noncustodial parent pays all of the child-care costs. A noncustodial parent may claim a dependency exemption for a child if the custodial parent signs a tax form giving her consent to the noncustodial parent to do so. Unless a court orders this to be done, however, a custodial parent is under no legal obligation to sign such a consent form.
The Hague Convention gives custodial parents a right to the return of children who have been abducted to a foreign country, and provides remedies for the enforcement of that right. It does not give a noncustodial parent a right to the return of children whom the custodial parent has abducted to a foreign country.
At one time, only a noncustodial parent’s interference with the custodial parent’s rights was a crime. In the late twentieth century, most states made interference with visitation rights a crime, too. Nearly every state made a distinction, however, in terms of the severity of the offense. Interference with custody rights was classified as a felony while interference with visitation rights was classified as only a misdemeanor.
Many states have been moving toward treating interference with visitation rights as a crime of the same severity level as interference with custody. Nevertheless, because there are still some states and foreign countries that continue to treat interference with visitation rights as a non-felony-level offense, the distinction can be very important in terms of interstate and international enforcement.
Physical custody includes the right to a child’s services as well as companionship; visitation only provides a limited right of companionship. For this reason, some states allow recovery of damages for tortious interference with custodial rights but not for tortious interference with visitation rights.
Some states requires that either the custodial parent or the child “reside” (as distinguished from “visit people”) within the school district.
Authority to pick a child up from a school or child-care facility
State and municipal laws and regulations vary widely on the point, but a law or regulation in a particular jurisdiction may specify that only a parent with physical custody is permitted to pick up a child from a school or a child-care facility. In these jurisdictions, a noncustodial parent may do so only if the custodial parent expressly consents to it.
Some public assistance programs limit eligibility to custodial parents only, or they increase the level of benefits in proportion to the number of children who “reside” in a parent’s home.
These are just some examples. There are other rights, benefits and privileges that laws, regulations and contracts (public or private) afford to custodial parents that are not granted to noncustodial parents. In Minnesota, for example, there are Minn. Stat. §§ 62A.046 (2012) (authorizing payment of dependent health care benefits to the custodial parent, but not to the noncustodial parent); 119A.37 (2012) (requiring the creation of standards for the protection of the safety of custodial parents, but not for the safety of noncustodial parents, during parenting time exchanges, and authorizing parenting time centers to offer classes and support groups to custodial parents, but not to noncustodial parents); 168.021 (2012) (authorizing only the custodial parent of a disabled child to obtain, display and use handicap license plates); 349A.08 (authorizing payment of minor child’s lottery winnings to a custodial parent, but not to a noncustodial parent.) This is not, by any means, an exhaustive list.
The most important reason
As significant as all these things are, the most important difference between the custody and visitor “label” has to do with something much more intangible, the legal status and dignity of the person to whom the “mere label” is affixed.
A pragmatist who has no experience with being treated as a second-class citizen might find it difficult to understand why a legal status can seem so important to some people. An analogy to the civil rights area might help clarify.
Suppose, instead of the Fourteenth and Fifteenth Amendments, Congress had simply enacted laws giving slaves a right to be paid the same wages they would be paid if they had the label “employee” rather than “slave.” Suppose, in addition, that Congress had enacted a law to the effect that henceforth every slave who can establish that his or her vote will be in the best interest of the country shall enjoy a privilege to vote in elections. Shouldn’t this be just as good as giving all slaves the label of “citizen”?
What do you think?
The need for reform
By showing that the custody “label” does matter, it is not my intention to encourage people to fight for custody. As I indicated at the beginning, I no longer participate in custody litigation. There is a reason for that. In the civil rights analogy, it would be tantamount to helping slaves fight each other to prove whose vote is in the best interest of the country. The needed fight is not one pitting parent against parent; it is one for the restoration of rights to all parents.
My book, The History of Custody Law, is available in paperback and Kindle e-book formats at Amazon.com:
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