Differences Between Legal and Physical Child Custody

When you're splitting up with your child's other parent, you'll need to address the issue of child custody, either as part of a divorce or in a separate custody proceeding. Whether you're preparing for a custody case or hope to reach a parenting agreement, you should become familiar with the basic principles of child custody.

The first thing to understand is that there are two elements to child custody: legal custody and physical custody. It's not unusual for legal and physical custody to be set up differently. For example, parents might have joint legal custody but not joint physical custody. But with both legal and physical custody, judges base their decisions primarily on what would be in the best interests of the child, not necessarily what the parents want.

What Does Legal Custody Mean?

Legal custody refers to parents' authority to make the important decisions about their children's lives, such as:

• medical and other health care, including the choice of doctors and whether the kids will get vaccinations or go to therapy
• schooling and other educational resources like tutoring and special education
• religious activities and instruction, and
• whether they'll take part in extracurricular activities like team sports, school band, or music lessons.

A few states use different terms for legal custody, such as decision-making or parental responsibility (in Colorado and Florida) or managing conservatorship (in Texas).

Joint or Shared Legal Custody

Most married parents make important decisions about their children together. And when they divorce or separate, judges usually prefer to keep this arrangement—generally called joint or shared legal custody. That preference is based on the longstanding recognition by courts that fit parents have a fundamental right to decide how their children are raised.

But even when both parents have the legal decision-making authority for their children, one of them—typically the primary residential (or custodial) parent—will often make routine decisions like scheduling doctor's appointments or authorizing emergency medical treatment. Just as when they are still living together, it's up to divorced parents to work out the practicalities of how to handle these decisions.

The best way to do that is to put it in writing ahead of time (whether in a separate custody agreement or as part of a complete divorce settlement agreement). For example, you may agree that you'll follow the advice of your child's pediatrician if there's a dispute about vaccines, medication, or authorizing a medical procedure.

When Do Judges Award Sole Legal Custody?

Despite the built-in preference for giving both parents a say in how their children are raised, judges may grant sole legal custody to one parent when that would be best for the children, such as when the other parent:

• has a history of domestic abuse (toward either a child or the other parent) or child neglect
• has serious mental illness or a substance abuse problem that hinders the ability to make good decisions, or
• isn't involved in the child's daily life.

Judges might also order sole legal custody in high-conflict cases where it's clear that the parents won't be able to agree.

Some judges may order joint legal custody while designating one parent as the tie-breaker in any disagreements. This isn't that different from sole legal custody, but it does encourage both parents to be involved in the decision-making process.

Joint legal custody can sometimes turn into a constant battleground, with the parents going to back court to try to resolve disagreements. If this keeps happening—especially if one parent makes decisions about a child's life over the other parent's objections—the judge might modify custody by changing the existing arrangement to sole legal custody.

Physical Custody

Physical custody refers to where the children live most of the time. As with legal custody, some states have different names for physical custody, such as parenting time or time sharing.

Sole Physical Custody With Visitation

With sole physical custody, the children live with one parent while the other parent has visitation time. This traditional arrangement isn't as common as it used to be. But it still might be the best solution for the children in certain situations, especially when:

• the parents live far enough apart that it would be difficult for the kids to go back and forth frequently, or
• one parent isn't able to provide proper care for the kids because of housing instability, mental health issues, or substance abuse.

Even when one parent has sole physical custody, judges will usually try to make sure that the other parent can have frequent and continuing contact with the children—a goal that is explicit public policy in some states. For instance, noncustodial parents who live far away from the custodial parent might have the children during summer vacations and other long school breaks.

Joint or Shared Physical Custody

With shared physical custody or parenting time, children split their time between their parents. This way, they can have two engaged and involved parents, with two real homes.

Some states require judges to start out with by presuming that joint physical custody is better for the children. Then, any parent who disagrees must provide convincing evidence that shared custody wouldn't be good for the kids.

Joint physical custody doesn't always mean an exact 50-50 split. For instance, it often works best for the children to spend school nights with one parent (often called the primary residential parent) and weekends with the other parent. Of course, this kind of arrangement isn't very feasible if the parents live far apart.

Shared Parenting Plans

Shared parenting plans usually involve detailed schedules, including provisions for issues like:

• when, where, and how parents will pick up and drop off the kids
• how the parents will communicate and deal with unforeseen changes to the schedule, and
• where the children will spend birthdays, holidays, and other school vacations.

In most cases, parents work out their own parenting plan—either on their own or with the help of custody mediation, their lawyers, or both. In fact, many states and courts require parents to participate in mediation of any legal custody dispute. Once the parents have agreed on a plan, they'll submit it to the court. Judges usually approve these agreements as long as they appear to be in the children's best interests.

When Parents Can't Agree on a Parenting Plan

If parents aren't able to reach an agreement about physical or legal custody of their children, each of them will typically submit a proposed parenting plan to the court. A judge will then review those plans along with all the other evidence—which might include a report from a custody evaluation—before deciding on a custody arrangement that will be best for the children.

If you find yourself in this situation, you should speak with a family law attorney who can help you gather and present the kind of evidence you need to win your custody case.