A lot of lawyers talk about family law as if everyone knows the vocabulary. So you may be sitting with your lawyer, and staying quiet, out of embarrassment. “Maybe that stuff really is first grade level and I better not look foolish.” I am not throwing stones here. We all do it. But good lawyers take the time needed to explain basic terms, if the client does not already know them. We need you to know the legal concepts so that you can make fully informed decisions. You cannot make a good decision if you don't know what is going on.
Let's go through some basic terms. If you know them, just skip them. But I bet there are many lawyers practicing other areas of law that may not know some or many of these:
- Dissolution of marriage: That is a divorce. Don't blame us for using big words. The legislature defined the divorce process using those terms. So we are constantly saying “dissolution” this and “dissolution” that. We mean divorce.
- Custody: This one is tricky. Missouri statutes identify two types of custody: legal and physical. Each have their own meanings as stated below. Also, some statutes refer to “custody and control,” which just means what it sounds like: the child is in the care of someone or some entity.
- Legal Custody: This means who has decision making power as to the child. A person who has sole legal custody decides whether or not to send the child to private school, public school or be schooled at home. That person decides the child's religion, activities, dental and medical care. However, that person does not usually decide the schedule. The schedule is defined by a court order called a Parenting Plan, as defined below. Also, sometimes the court willrestrict sole legal custody, giving the other parent some decision making rights to be shared.
- Physical custody: No one really knows what this means. The best way to look at it, is if you have significant and meaningful parenting time (like every other week, or even every other weekend), you have physical custody. If a parent has supervised visitation twice a month, that is probably not the same thing as having physical custody.
- Joint legal custody: This refers to joint decision making power over the child. Sometimes awards of joint legal custody are subject to restrictions. For example, one parent might have the final say as to an end of life issue. One parent may have the final say about where the child attends school (public, private or at home.).
- Modification of custody: That is a lawyerese shortening of “modification of custody judgment.” A Court may modify a judgment of custody, by changing whether or not custody is joint or sole. That usually accompanies the modification of visitation. Think of one parent becoming addicted to controlled substances. That parent may lose decision making rights, and have reduced time with their child(ren). Sometimes lawyers refer to the litigation as a “modification.” But that is misleading. The court can modify the amount of spousal support in a modification of maintenance (see below) lawsuit, whether or not child custody is an issue. Also, the courts may adjust the parenting schedule without modifying legal custody, in a modification of visitation lawsuit.
- Parenting Plans: This is usually a separate part of the custody, visitation and support judgment that serves as a handbook for the parents. The plan includes a schedule for the parents to spend time with their child(ren), and instructions about who makes decisions as to different kinds of decision-making. It covers how parents may communicate with their children (text, e-mail, in-person, etc.). It covers how parents resolve disputes (through a mediator, usually). It usually assigns which parent claims the children as a dependent on their income tax return. It often sets out child support and the schedule. It also controls which parent may access the child's school, health and dental records. Parenting plans may be detailed or simple, depending upon the skillset of the lawyer and the ability of the parents to get along.
- Maintenance: Again, don't blame the lawyers. The legislature used the word and we are stuck with it. Maintenance does not mean court ordered oil changes. Maintenance means spousal support. Think “alimony.” In Missouri, maintenance means the periodic (think monthly) amount of money an ex-spouse pays the other ex-spouse, over a period of time, for the purpose of helping the recipient meet their reasonable needs.
- Child support: This one is self explanatory. It's the monthly amount of money one parent pays to the other by court order.
- Back child support: This is money that is owed because the parent obligated to pay child support got behind. Interest can be charged to this parent.
- Child(ren)'s expenses: This one requires a little more thought. Most judgments require one or both parents to pay for expenses over and above child support. This may be as simple as medical bills not covered by insurance. These expenses are usually divided between the parents. Some judgments have specific expenses listed that are to be divided, such as private school tuition or dormitory bills. Others might deal with tutors, braces and therapy.
- Paternity lawsuit: This lawsuit determines the identity and obligations of the father to the mother, and vice versa. Usually, for very natural reasons, there is no question about the identity of the mother. But identifying the father requires proof. A paternity lawsuit requires proof that the men or man named in the lawsuit is indeed the father. Also, the paternity lawsuit determines who will have custody, the parenting schedule, the amount of child support, and the tax exemption.
- Guardianship: Custody lawsuits between private parties are filed in the Family Court. A guardianship lawsuit happens in the probate court. Often, the guardianship lawsuit happens even though an earlier judgment determined the parent's custody and visitation rights. Guardianship lawsuits are about whether or not both parents are unfit, unwilling or unable to parent. Parents are the natural guardians of the child. The guardianship lawsuit seeks to put in place a “legal guardian.” Many guardianship lawsuits are presented by grandparents. But you do not have to be a relative of the child to be named the legal guardian by a court. Guardianship judgments are not permanent. They may be retried every six months. However, after the guardianship judgment is granted, the later litigation just determines whether or not it's in the child's best interests for the guardianship to remain. The fitness of the parents are not necessarily relevant.
- Adoption: Adoptions are not custody lawsuits. They are about terminating the rights of one or both parents, and replacing them with individual(s) that the law determines to be the child(ren)'s parents. The law recognizes a fundamental right for parents to care for their children. That may be overcome if the parent is mentally ill, and likely to remain that way for the foreseeable future, and the mental illness prevents parenting, or if the parent abandoned the child under certain circumstances. Unlike guardianship judgments, adoption judgments are permanent. All rights and obligations of the former parent(s) are severed. No right to be with the child exists for the biological parent whose rights are terminated. But they need not pay future child support.