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What's the Difference Between Legal Custody and Physical Custody?

 

If you're a parent of minor children and getting divorced, the issue of child custody has as likely crossed your mind. As you negotiate your divorce settlement with your soon-to-be-ex, issues like who gets legal custody and physical custody of the children will be on the table. Depending on your situation, you might be feeling quite stressed about the custody arrangements for your children – especially if you aren't sure what's going to happen.

In this article, we explore the definitions of and differences* between different types of child custody: legal custody, joint legal custody, sole legal custody, physical custody, and joint physical custody. These are terms you'll want to thoroughly understand as you and your spouse figure out the details of your custody agreement. We also discuss possible visitation scenarios.

*Note that the term "custody" is used in many, but not all, states.

Legal custody

Parents with legal custody have the right to make important decisions concerning a child’s health, welfare, and education. This includes where the child attends school and from whom they receive medical care. When parents are married, they typically share this decision-making power.

Joint legal custody

Often, divorcing parents choose to continue joint decision-making as co-parents after divorce. This is known as joint legal custody.

Parents do not have to agree on all child-rearing issues in joint legal custody situations; each maintains a right to make decisions for the kids. To avoid further litigation, however, it's best for parents to decide on issues together. This is especially true for important decisions like where the child will attend school.

Joint legal custody is a common divorce outcome. When joint custody is not awarded, it may be for one or more of these reasons:

  • The parents cannot make any decisions concerning their children together.
  • A parent is deemed unfit due to abuse, neglect, domestic violence, or other incapacities, such as substance use.
  • It is in the best interests of the child for a sole parent to retain legal custody. (If a parent has sole legal custody, they make all decisions about the child's health, welfare, and education.)

In any custody case, the court always views the best interests of the child as the paramount concern.

Sole legal custody

iWe mentioned “further litigation” above, which can happen if parents disagree on multiple child-rearing issues. If a custody case goes before a judge, there is a chance that the judge will decide to award sole legal custody to one parent. This arrangement cuts out one of the parents completely when it comes to making important decisions for the child. (Note: This doesn’t always happen when parents cannot agree. There is also a chance the court might name one parent as the “decision-maker” or “tie-breaker” in joint legal custody disputes.)

Sole legal custody might also be awarded to one parent if the other is unable or unwilling to fulfill parental duties.

Physical custody

Physical custody reflects where the child will live after the divorce. A parent with physical custody has the right to have the child physically present in their home. If a child lives primarily with one parent, that parent is the custodial parent. The parent without physical custody, known as the non-custodial parent, typically has visitation rights.

The visitation arrangement varies from one family to the next. For example, some non-custodial parents might spend three evenings per week with their child. Others might spend every other weekend with them. The term “visitation” refers to the time a non-custodial parent spends with their child.

Joint physical custody

Parents with joint physical custody share the right to provide physical care for the children. Joint physical custody does not always mean a 50/50 schedule. However, it does mean both parents have the right to provide physical care. Parents could have joint physical custody and a timeshare of 20/80, 30/70, 40/60, or 50/50. An example of a 50/50 timeshare would be week-to-week custody, where the kids live in one parent’s home one week and the other parent's home the next.

Physical custody is determined based on the child's best interests. Courts do not usually award joint physical custody if there is evidence of parental abuse or neglect.

Other important terms in child custody

Visitation

Visitation refers to the time a non-custodial parent spends with their child. It is, once again, based on the best interest of the child, and it varies based on the facts and circumstances of the custody case. Usually, there is a preset visitation schedule to prevent confusion and promote fairness when it comes to things like holidays and birthdays.

Reasonable visitation

Sometimes, a child custody order mandates "reasonable” visitation without mention of specific periods of time or days of the week. In these cases, the parents must devise a visitation schedule between themselves. This requires communication and compromise. As such, reasonable visitation is not often used in contested custody cases where parents aren't getting along.

Supervised visitation and no visitation

Supervised visitation or no visitation may be ordered if a parent's ability to adequately care for a child is questioned. This is done when evidence of substance abuse, neglect, domestic violence, or other child abuse exists. Supervised visits may occur in the presence of a governmental agency or a third party.

Custody orders should be specific enough to be followed without question but flexible enough that they will last a long time. If you'd like more information, Hello Divorce offers a wealth of informative articles about custody situations.