Knowing the Difference Between Physical and Legal Custody

Determining child custody can be a challenging process for parents, children, and the courts.

Many factors must be considered when making decisions that are in the best interest of the child while accommodating the preferences of each parent.

Physical and legal custody are classifications that are often misunderstood. As a result, confusion and conflict can arise unless these terms are clearly defined in a parenting plan order.

Physical Custody

Physical custody refers to the location in which a child will reside. Physical custody can either be joint or sole.  Sole physical custody implies that a child lives with one parent for the majority of the time; joint physical custody connotes that the child spends substantially equal time with both parents.

When parents can work together to make decisions for the child, joint custody can be a great arrangement for the entire family.  However, for this type of custodial arrangement to work, the parties typically must be able to cooperate, communicate, and respect each other; if any one of these three characteristics is missing, then it is difficult for a joint custodial arrangement to be successful.

Parents should, ideally, also live in close proximity to each other for joint custody to be successful. It is difficult for a child to be productive in school and be able to participate in extra-curricular activities when he/she is spending great amounts of time in a car traveling between his/her parents’ residences.

In any court-order custodial arrangement, the parents, or the court, will determine a schedule that outlines the specific times in which a child will reside with each parent; this is called a parenting plan order.  If the parties are in agreement, then they are free to make other arrangements outside of this parenting plan order; however, if they cannot agree to alternative arrangements, then the parenting plan order is the default schedule.

Legal Custody

Unlike physical custody, legal custody is primarily concerned with the legal right to make decisions for the child.  Similar to physical custody, it can also be granted to one or both parents depending on the circumstances of a given case. The decisions that are encompassed in legal custody are issues related to the minor child’s education, health, religious upbringing, and extra-curricular activities.

When sole legal custody is granted, one parent has the legal right to make all of these decisions, without any requirement to discuss the issue with the other parent before a decision is made.

When legal custody is shared (i.e., joint legal custody), all major issues must be discussed between the parents; in other words, one parent cannot make any unilateral decisions.  After such a discussion, if the parties are unable to agree, then one party is designated as having a “tie-breaking authority” for that particular issue.

For example, if one parent wanted to move their child from public school to private school, in a joint legal custody arrangement, that parent would need to discuss such a possibility with the other parent, including benefits, disadvantages, potential schools, and associated costs. If the parties could not agree on this issue, then the parent who has the “tie-breaking authority” on issues of education would be able to make the final decision.

Parents who have joint legal custody must abide by the terms of the parenting plan when making decisions for their child.  Excluding the other parent from any important decisions could lead to further legal actions, including findings of contempt and even a modification of custody.  The courts have the right to enforce the terms of a custody order, and any disputes could require additional legal assistance from your attorneys.

Custody Decisions for the Best Interest of Your Child

The best interest of the child is the primary factor in determining both legal and physical custody.

It’s defined by many factors that may include the preference of the child, the established relationships with parents and extended family, specific health or educational needs, and the personal histories of each parent.

Cooperation between the two parents contributes to the wellbeing of the child and prevents unwanted, costly, and emotional legal challenges from arising in the future.

Understanding the difference between legal and physical custody gives you the resources you need to determine how to accommodate the best interest of your child in a separation or divorce.