What is De Facto Custody?
Attorney
custody as being a "pseudo legal" and factual reality. De facto custody
is based in fact, not law. In contrast, legal custody is based on law
alone, by court order or stipulation. Indeed, one parent can have
"legal" custody by court order, while the other parent may actually
have de facto custody. There is no legal benefit per se of having de
facto custody, but the courts and law enforcement will certainly
recognize the enhanced parental status ... to the extent that it may be
(incorrectly) referred to interchangeably with legal custody.
De facto custody may appear to follow an objective standard, but it is
largely subjective. In fact, one judge might view a parent as being the
de facto residential parent, whereas another might not. The easiest way
to gauge who has de facto custody is to count hours and see who has the
most. However, the easiest way is not always the best, nor is it
universally accepted. The quality of the hours must also be considered.
The involvement of each parent in decision making must also be
considered. The length of time that the dynamic has remained in place
must also be considered. Finally, one has to consider whether there is
a court order in place.
It is fair to say that de facto custody is a major factor in
determining who should be awarded residential custody. Specifically,
how well the de facto custody has worked while it was/is in place will
be considered. There are scenarios where the party with de facto
custody has so badly managed the enhanced parental status that it
backfires.
In any event, once a judge formally recognizes de facto custody,
barring a very persuasive reason to adjust the status quo (or a
settlement), it will probably continue with minor modifications.