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What is the difference between physical and legal custody?

Many parents think of custody as a single award of parenting rights that will be granted entirely to one parent or entirely to another. However, child custody is more complicated than that.

One of the most important child custody details for parents to understand is that there are different kinds of custody. A custody order includes provisions regarding both physical and legal custody. Either physical or legal custody can be sole or joint.

Where will a child live?

The concept of multiple types of custody can be confusing for parents. Often, a parent’s main concern is over where the child will live. Physical custody refers to where the child will spend his or her time and how much of the child’s time will be spent with each parent.

If a court awards joint physical custody, the child will spend close to an equal amount of time with each parent. Technically, the child must spend at least 40% of his or her time with each parent for the custody arrangement to be considered joint. With this type of arrangement, a child will spend time at each parent’s house. If the child is school-aged, parents may need to live close enough to each other that the child can attend school regardless of which house he or she is staying at.

Sole physical custody is the arrangement that involves the child staying with one parent all the time. The other parent may have no visitation time or very limited visitation time with the child. However, it is usually best for a child to maintain an ongoing relationship with both parents, so courts do not often order this arrangement.

Physical custody also has a third variation, called primary physical custody. This is when the child spends more than 60% of his or her time with one parent. Typically, the other parent will have some parenting time or visitation with the child. However, the child’s main caregiver is the parent with primary physical custody. This may be appropriate in situations when it is best for the child to continue seeing both parents, but they live too far away from each other for the child to attend one school.

Who gets to make decisions about the childs upbringing?

While it is important to determine which parent a child will live with, it is also important to determine which parent has the right to make decisions about that child’s upbringing. This is where legal custody comes in.

Legal custody refers to the responsibility for a child, the ability to access information about that child and the right to make major decisions regarding that child. Major decisions can include:

  • What type of non-emergency healthcare the child receives
  • Where the child will attend school
  • How religion may play a role in the child’s upbringing

Joint legal custody allows both parents to make these child-rearing decisions. Sole legal custody grants only one parent the right to make these decisions. Usually, courts award joint legal custody, even when the court deems primary or sole physical custody most appropriate for a child. However, a court can order sole legal custody in extreme circumstances.

Understanding the different types of custody can help divorcing parents better advocate for their child’s needs. Any custody decision must prioritize the needs of their child, and by understanding the options, parents can find the arrangement that best fits their unique situation.

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