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What’s the Difference Between Legal and Physical Custody?

Thursday, February 23, 2017
What’s the Difference Between Legal and Physical Custody?

The common perception of child custody is sometimes in conflict with legal definitions. Very often, people will describe the parent that lives with a child, most of the time, as having sole custody. And the parent that spends weekends, holidays, and summers with the child as having visitation. There is also this general idea that the parent the child lives with, most of the time, makes the major life decisions, such as schooling, medical, and religion. The legal reality is a bit different.

Under family law, child custody is separated into two types: legal and physical. These are two separate concepts. Physical custody identifies where the child or children will live. On the other hand, legal custody settles the question who has the power to make major decisions for the child. In a divorce, it is not uncommon for legal and physical custody to be different.

Physical custody is the right for a parent to have their child physically present in their home. Joint physical custody does not automatically translate into each parent living with the child 50 percent of the time, especially with school aged children. Family courts primarily focus on working in the best interest of the child. While splitting time evenly is not impossible, in the vast majority of instances, it is not practical. Therefore, one parent becomes the primary custodial parent and the other is the secondary.

Sole custody means that all of the custodial rights have been awarded to one parent. While this is unusual, the court will generally not pause to bestow sole physical custody to one parent if the other is considered unfit. For example, if one parent has an alcohol or substance abuse problem, or there are charges of abusing or neglecting the child, it is often in the best interest of the child to grant sole custody to one parent.

Nonetheless, most often, the court work to have both parents play a role in their children's lives. Even in cases of sole physical custody, the court may grant both parties joint legal custody, and the noncustodial parent receives generous visitation. Joint legal custody requires parents to make joint decisions regarding the child's upbringing, even when one parent is the primary custodial parent. Parents who share legal custody must come to an agreement on issues of the child's religious upbringing, schooling, and medical care.

What haven't we covered yet that is important to you? If you would like to talk more about the difference between legal and physical custody, or other related topics, please contact us.


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