Legal Custody? Physical Custody? Both?

This conversation happens in the majority of my intakes of custody or divorce clients: the potential client will say he or she wants sole custody, but when pressed, the client has a vague understanding of what that means. Sometimes the understanding is completely wrong. So, here is your quick primer on what those terms mean. 

Technically speaking, the term "physical custody" doesn't really exist in Iowa. In an attempt to clarify the confusion, the Legislature now refers to "legal custody" and "physical care." However, that does not mean people don't still use the terms interchangeably or confuse the two. After all, custody just sounds like something that involves day-to-day care of the kids. 

Iowa Code 598.1 outlines definitions of words used in the Dissolution of Marriage provisions of Iowa law, so we are all on the same terms when discussing these issues. This section defines "physical care" as "the right and responsibility to maintain a home for the minor child and provide for the routine care of the child." In contrast, "legal custody" or "custody" gives the parent certain rights and responsibilities toward the child, including (but not limited to) "decision making affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction." 

Now in English: physical care defines where the child sleeps most nights. Legal custody defines who makes decisions about the child, including such things as whether to have the child baptized and in what church, whether the child takes dance classes or piano lessons, or whether to spend the money on braces when the dentist says they will be purely cosmetic.

Most people that say they want sole custody mean that they want primary physical care. They want to be the parent to maintain the primary home for the child. Lots of parents do not mind consulting with the other parent to make such important decisions as religious, medical, or educational decisions. This inclusion of the non-custodial parent in these decisions tends to make that parent still feel involved, and less like a weekend-only parent. It can also reopen lines of communication that have undoubtedly been damaged during the break up. 

However, there are some parents that request sole legal custody and mean it. Usually the other parent in these situation has a history of domestic violence against the children or parent, a history of drug use, or serious mental health issues. But it can also be cases where the two parents can barely agree on anything, or one parent just wants to punish the other. 

Whether to seek sole legal custody, or even primary physical care is, of course, a decision that can only be made based on the facts in any given case. But understanding the key words involved in the conversation with an attorney will only help clarify for both of you what is really desired.

Books to Help Children Understand Divorce

There is a plethora of literature out there to help children of all ages deal with divorce. They vary on the child's age, the message (such as separation, blame, or coping with two households), and even the amount of guidance provided to the parents. I have included a smattering of such books available. I urge anyone considering purchasing, borrowing, or checking out these books to read reviews and contents to make sure the book fits your family situation. Again, there are many more out there. This is just a good place to start your search.


I gathered the intended ages from either professional reviews or the information provided by the author. Again, check for yourself, as your child may have needs that are traditionally seen in a different age group.

• Dinosaurs Divorce, Laurene Krasny Brown and Marc Brown; ages 1-6
• Was it the Chocolate Pudding?, Sandra Levins; ages 2-6
• Two Homes, Claire Masurel; ages 3-6
• The Invisible String, Patrice Karst; ages 3+
• Where am I Sleeping Tonight?, Carol Gordon Ekster; ages 3+
• Standing on My Own Two Feet, Tamara Schmitz; ages 4-6
• It's Not Your Fault, Koko Bear, Vicki Lansky; ages 4-7
• My Family's Changing, Pat Thomas; ages 4-8
• Mom's House, Dad's House For Kids, Isolina Ricci; ages 10-14

Feel free to let me know any others that have been helpful for you or your children! 

Facebook and Family Law: Internet Drama IRL

You just got into a huge fight with your ex over when the exchange for the kids will occur. In a fit of rage, and looking for a little commiseration, you take to the almighty Facebook. “Some people suck. Think about your kids, idiot.”

Admissible? Probably. Facebook is akin to standing on a stage and yelling things at a crowd. It might be a crowd that you have invited over, but you yelled it nonetheless. And when your ex finds out you have been saying things on Facebook, probably from a mutual friend who took his or her side, you will be asked about it, in court, under oath, where you have to tell “the truth, the whole truth, and nothing but the truth.” Don’t forget, too, that the other attorney could probably force you to release this information, and will probably get it even if you object.

When the other attorney asks you if that post was about your ex, what are you going to say? You cannot lie, so you are going to have to admit this vague post was about the ex. So the vagueness was a huge waste of effort. You are certainly better off to have never said it at all.

It gets worse. Once these posts are up, you may be destroying evidence by taking them down. So the best solution during a custody battle is to leave your Facebook page up, including all content thereon, but don’t add anything, or limit the posts to positive, light-hearted, and certainly true, information.

And it gets even worse. Even things third parties have written about you or to you could be used in court. It is a little more difficult to get into evidence, but it can, and has, been done. Recently, there was a contempt hearing, where Dad had not paid a variety of expenses for his kids that he was court-ordered to pay. He defended himself by arguing he couldn’t afford to pay the expenses. His step-daughter’s recent Facebook posts were admitted to show he was lying. The posts in question thanked Dad, by name, for the recent purchase of a car for her. The judge was less than amused, and made it clear in the Order finding Dad in contempt.

This is my food for thought: maybe, during a custody battle or other family legal argument, you should treat your Facebook page like an acquaintance on the street who just asked you how your day is going: pleasantries only, no real details. Rather, if this is someone you want to give the full story, have lunch or private message them. Don’t yell it from the stage.