Legal Custody vs Physical Custody

When it comes to the process of divorce or separation from an individual with whom you share a child, addressing the issue of child custody is often complicated. Additionally, every custody situation is unique and different. As such, there are many different forms of child custody that may be ordered in a custody case.

As a legal term, child custody refers to the legal and practical relationship between a child and their divorced parent or legal guardian. As far as the exact laws concerning child custody, the laws will vary by state.

However, every state will always adhere to the child’s best interest standard when making child custody decisions. The child’s best interest standard means that all state child custody laws will place the child’s interests and backgrounds above the parent’s personal preferences.

It is important to recognize the differences between legal custody and physical custody. A parent that has legal custody over their child will have the right to make important legal decisions on behalf of that child. Physical custody on the other hand refers to a parent’s right to determine where their child resides.

In some cases, both parents may have joint physical and legal custody of their child. In fact, there is a general presumption that most courts have that spending time with both parents is in a child’s best interest. The following article explores how courts determine the amount of physical custody and legal custody each parent should be granted.

What Is Legal Custody?

Once again, a parent that has legal custody will have the right to make important decisions with regard to that child’s upbringing. Examples of important decisions that a parent with legal custody has, include:

• The right to make educational decisions for their child, such as what type of school the child should go to, what type of courses the child should take, and other educational choices
• The right to make religious decisions regarding what religion to raise the child in, if any
• The right to make legal decisions on behalf of their child, such as whether or not to enter into a legal contract on behalf of their child or the right to represent their child in a lawsuit that concerns the child
• The right to make medical decisions for their child, such as whether or not their child should undergo invasive and noninvasive procedures
• The right to consent to and make decisions regarding the psychiatric treatment for their child
• The right to determine the child’s primary residence, which may impact tax returns and other legal rights

There are different types of legal custody that may be ordered depending on your situation. The following is a list of different custody arrangements that a court may order:

• Sole Custody: In a sole custody arrangement, only one parent will have custody of the child for most of the time. The other parent is then permitted certain child visitation rights, that allow them to visit with their child for an allotted period of time
  • In general, courts are moving away from sole custody arrangements, as numerous courts presume that a child having access to both parents is in the child’s best interest
  • If there is evidence that the child is in clear danger in one parent’s household, or evidence is shown that permitting one parent custody of the child is not in the child’s best interest, sole custody may be ordered by a court
• Joint Custody: When the two parents can agree on custody, or a court orders them to share decision-making and child-raising responsibilities, joint custody will be ordered
  • Courts generally prefer joint child custody arrangements as they are typically considered to be in the child’s best interests
  • Joint child custody arrangements ensure children have continued contact and involvement with both parents by allowing both parents to have almost equal possession and access to their child or children
• Bird’s Nest Custody: Bird’s nest child custody refers to a rare form of child custody where the child remains living in the family home and the parents take turns moving in and out of the home to care for the child
  • Bird’s nest custody is typically not granted as it is disruptive for the parents’ schedules, and the parents will not typically be amenable to the arrangement
• Split Custody: In a split child custody arrangement, otherwise known as a 50-50 child custody arrangement, both parents are granted equal rights to physical possession of their child or children
  • Split custody arrangements are rarer than a joint custody arrangement as one parent is typically less available to provide care for their child on a daily basis
  • For instance, one parent may have a career that does not provide them the time to care for their child fifty percent of the time

What Rights Does a Parent Without Legal Custody Have?

Just because a parent does not have legal custody of their child, they will still have certain parental rights. For example, a parent without legal custody may still retain visitation rights to spend time with their child.

The exact amount of time and frequency of visitations will ultimately be up to the court that makes the ruling on child custody. For instance, a parent that resides out of state may have visitation rights to see the child for one weekend a month and a period of time during Summer or Winter break.

During that parent’s visitation time, they will generally have certain legal rights with regard to the day-to-day care of the child, such as making noninvasive medical decisions. Additionally, that parent may also be granted certain other legal rights by agreement with the other parent.

What Is Physical Custody?

As mentioned above, physical custody refers to a parent’s right to determine where their child resides. Physical and legal custody will generally be determined together. As such, all of the above custody arrangements also apply to a parent’s right to have physical custody of their child.

For example, joint physical custody refers to the situation where both parents are able to physically care for the child. It allows both parents to have frequent and ongoing contact with their child or children. In other words, both parents will generally have the right to possess their child fifty percent of the time.

Full physical custody refers to a type of physical custody arrangement where a child is legally allowed to live with only one of their parents. The other parent is then simply granted periods of visitation with the child. Once again, courts will not award sole custody, unless it is proven that it would not be in the child’s best interests to live with the other parent.

What Factors Are Considered When Making Custody Decisions?

Once again, the child’s best interest standard is the legal standard that all courts adhere to when making decisions regarding children and child custody. Under that standard, any decisions that will affect a child, such as child custody or visitation rights, should ultimately benefit and protect the child.

Examples of factors that are considered when making custody decisions, include:

• The child’s background, such as their sex, age, personal health characteristics, and special needs
• The child’s own preferences, if they are old enough according to their state’s guidelines to make a decision regarding their living arrangement
• Environmental factors, such as the quality of education in each parent’s school district, the safety of each parent’s neighborhood, and each parent’s proximity to the child’s extracurricular activities
• The physical and mental health of each parent, as well as their ability to provide emotional and financial support for the child while the child is in their care
• The stability of each parent’s lifestyle, background, and employment
• The existence of and attachments to other family members in the home, such as siblings or grandparents
• Each parent’s commitment to facilitating an ongoing and healthy relationship between the child and the other parent

Once again, most laws concerning child custody believe that it is in the child’s best interest for both parents to share joint physical and legal custody. This means that there is often a rebuttable presumption that joint legal and physical custody is the best interest of the child.

Do I Need a Lawyer for Help With Child Custody?

As can be seen, there are numerous factors taken into account when a court is determining physical and legal custody of a child in the case of a divorce or separation. As such, if you are going through a divorce with children or if you are going through a legal separation, it is in your best interests to consult with an experienced child custody lawyer.

LegalMatch can assist you with locating and setting up an initial consultation with a child custody lawyer in your area. An experienced child custody attorney will be able to help you understand your state’s specific laws on child custody, including any child custody presumptions that are utilized by your local family law court.

Additionally, an attorney will also be able to help you gather evidence necessary to protect your legal rights as a parent. Further, a child custody lawyer will also be able to initiate and respond to any legal pleadings necessary to protect your rights as a parent. Finally, an attorney will also be able to represent you in court, as needed.