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

You probably remember the shocking split of Brangelina – Brad Pitt and Angelina Jolie. You might also have heard that Angelina petitioned the court to allow Brad only joint legal custody over their six shared children, giving herself sole physical custody. So, what on earth does that mean?

In this article, we explore the definitions of and differences* between legal custody, joint legal custody, physical custody, and joint physical custody. 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 major decisions concerning a child’s health, welfare, and education. This includes where the child attends school and from whom they receive medical care.

Joint legal custody

Angelina petitioned for joint legal custody. This means she wanted to share legal custody rights with Brad. Parents do not have to agree 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 issues like where the child will attend school. Joint legal custody is commonly awarded in some states, such as California, Texas, and Utah. 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, or other incapacities, such as substance use.
  • It is in the child's best interest 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 child’s best interest as the paramount concern.

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 house. If a child lives primarily with one parent, that parent is the custodial parent. The parent without physical custody typically has visitation rights, which is what Angelina requested in her petition.

Joint physical custody

If Angelina had requested joint physical custody instead of sole physical custody, she would have wanted Brad to 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 can 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 how often parents share time with their children. Visitation is once again based on the best interest of the children, and it varies based on the facts and circumstances of the case. Usually, visitation adheres to a preset schedule to prevent confusion and promote fairness when it comes to things like holidays and birthdays.

Reasonable visitation

Sometimes, an order mandates "reasonable” visitation without mention of specific days of the week. In these cases, the parents must devise a schedule between them. This requires communication and compromise. As such, reasonable visitation is not often used in contested custody cases.

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, or other child abuse exists. Supervised visits may occur in the presence of a governmental agency or a third party.

Even for couples like Brad and Angelina, 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.