Physical vs. Legal Custody

*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.

For the most part, both parents of a child will share the responsibility of caring and providing for them. Things become trickier if the parents aren't already acting as partners, either as a married couple or just through natural cooperation. In these cases, it often becomes necessary for the court to step in to help define the terms of the custody arrangement for the child. There are multiple factors to consider with this, one of the most integral breakdowns being the terms of both physical and legal custody of the minor.

So what exactly distinguishes these two separate, but very related, concepts? Physical custody refers to who has the child with them, physically present, on a day to day basis. When people fight for custody, it is often primarily about physical custody. If the parents don't live together, and until children can be in more than one place at once, the courts must intervene to establish a custody arrangement if one can't be agreed upon.

Generally, primary physical custody initially goes to the mother until the custody agreement is settled upon formally in court. Typically, there is one parent designated as the primary physical custodian and the other parent receives secondary physical custody. Ultimately what is best for the child is most important, and that rarely involves constantly moving back and forth from one house to the other.

However, physical custody is not the only matter to decide. Whether the court decides to split the child’s time with the parent’s 50/50, give one parent primary custody, or even drastically limit a parents in person time with their child down to visitation rights, there is still legal custody to consider.

Legal custody refers to a parent/guardian's ability to make decisions on behalf of their child. So if a parent has legal custody, they are entitled to make decisions related to the child’s education, medical care, religious upbringing and more. Life is varied and so too are the decisions impacted by shared legal custody, but it can also include mental health care, involvement in sports and extracurriculars, travel and more. It is very common that parents will share joint legal custody of their children, even when physical custody is not a 50/50 split.

For the most part, parents must share in the decision making process for their children. It also means that they have the same rights to access information about their children, such as medical records or records related to their schooling. The significance of joint legal custody is that the parent who has visitation rights or secondary physical custody of the children cannot be excluded from the decision-making process regarding any major issues involving the children.

Ultimately, in circumstances of joint legal custody, one parent will be awarded final decision-making authority for times when the parents are unable to reach a mutual decision. Typically, the final decision goes to the parent who has primary physical custody.

It is not a perfect solution by any means, but by splitting up custody into these different aspects allows for the court to better tailor its decision to the needs of the family in question. It also better allows for both parents to be involved in raising their child, regardless of whether they are the primary or secondary physical custodian.

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