What’s the Difference Between Physical and Legal Custody?
In a divorce settlement, there are two main types of child custody: physical custody and legal custody. Both can be broken down into more specific types of custody. Each type entails different rules and responsibilities for the parents, depending on the terms agreed upon in court. Below, the general elements of legal and physical custody are outlined, including what that kind of custody means for you as a parent.
Legal Custody
If you have legal custody of your child, you have the most say in decisions regarding your child’s life. For instance, you would have the final say on your child’s educational needs, health needs, and social needs. If you and your ex spouse generally had equal parts in making these decisions during the marriage, a judge might grant joint legal custody. The terms of joint legal custody vary depending on each individual circumstance.
A judge will determine the terms of joint legal custody to best match the child’s life routine during the marriage, or to best the match the child’s best interests. Often, even during a marriage, one of the parents functioned as the primary caregiver, so in the joint legal custody that parent will still be the primary caregiver. A primary caregiver will make most of the decisions that are part of legal custody, such as where the child goes to school, if the child needs academic tutoring, or who is the child’s primary care physician. Though both parents can help contribute to these decisions in joint legal custody, they may agree it is easier to let one parent have the final say in these matters. This type of legal custody is often agreed upon because it is practical for the parents and is least disruptive to the child’s life routine.
In other situations, joint legal custody is not practical or convenient for many reasons. A judge might decide against it if one parent lives far away, if one parent is abusive, or if one parent is not usually involved with the child’s life decisions or part of the child’s everyday life. Sometimes, the parents simply cannot easily agree upon issues in the child’s life, and every decision turns into an argument; if any of these factors applies, a judge may decide on sole legal custody. The parent granted sole legal custody has the final say on issues regarding the child’s life including their education, health, and general wellbeing.
Physical Custody
Physical custody refers to where the child lives most of the time. This kind of custody is also awarded depending on the best interests of the child. Physical custody can also be sole or shared. Judges may favor joint physical custody because it allows the child to have two homes where the regularly spend time with each parent, rather than one home and one parent with whom they visit. Joint physical custody is not always divided evenly; this would only happen if the child was able to maintain a regular life routine no matter which parent they were staying with.
In cases where sole physical custody is awarded, the child will live with a custodial parent, and the other parent will have some type of visitation. In California, the parent granted sole physical custody has the presumptive right to move away with the child. However, the parent without sole custody rights can show in court that the move would be harmful to the child to prevent the other parent from moving. No matter what type of custody is awarded, the specific terms can vary a great amount depending on any number of circumstances. To better understand what types of custody can be awarded to you, consult with an experienced family law attorney.
