Physical vs. Legal Custody - Family Court Direct

Physical vs. Legal Custody: Understanding the Differences

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Child Custody Arrangements


When parents separate, it can be hard on the minor children of the marriage or relationship. As a result, the child’s welfare is usually paramount, and custody of the child is typically determined on this basis. 

All things being equal, the courts recognize the rights of both parents during custody hearings. Many states in the U.S. also recognize grandparents’ rights to visit and seek custody of their grandchildren in deserving cases.

As a parent asking for custody, it is essential to understand the several forms of custody arrangements that the court could order. This child custody overview explains the difference between legal and physical custody.

What Is Physical Custody?

Physical custody refers to a minor child’s residence after their parents are separated or divorced. It determines a child’s primary place of stay.

Several arrangements are available. For instance, the child could live in joint physical custody with both parents. In such an arrangement, the child may spend more time with one parent than the other. Such a parent is known as the primary custodial parent.

Sole physical custody means the child lives with one parent at all times while the other only gets visitation rights. The parent who only visits the child is called the non-custodial parent.

What Is Legal Custody?

In law, legal custody refers to the right to make major decisions about a child’s life. Those with legal custody may decide where their child goes to school, what extracurricular activities they participate in, as well as the medical treatment a child receives. 

Legal custody could be granted solely to one parent. The law often allows parents to share legal custody and equal participation in important decisions. Sometimes feuding parents may try to use their veto power to frustrate the other party’s efforts under joint legal custody plearrangements. In such an instance, the court could be approached to intervene.

Difference Between Physical and Legal Custody

Parents who intend to get custody and visitation orders need to understand the distinction between legal and physical custody. Based on this distinction and the type of custody awarded, there are critical implications for your involvement in your child’s life.

A parent with legal custody is responsible for making important decisions about a minor child’s well-being and future. When parents share joint legal custody, both parents share custody and have equal participation. Sole legal custody means that one parent makes all decisions about a child’s life making them the primary caregiver.

Sole legal custody usually applies where joint legal custody is likely to be detrimental to the child’s interests, such as when one parent is habitually out of reach. However, in some cases, a parent without legal custody can make critical decisions in an emergency for the child’s benefit. The parent with legal custody needs to be notified as soon as possible in such an instance.

In contrast, physical custody determines where minor children live and spend their time. Physical custody orders could be granted jointly or solely.

When it is joint custody, the child spends time with both parents if it is in their best interest. However, since parenting time cannot always be equal, one parent spends slightly more parenting time with the child than the other parent. Nevertheless, joint physical custody is ideal where the relationship between both parents is amicable after a divorce.

The child can only reside with the custodial parent in sole physical custody. The other parent may be granted supervised or unsupervised visitation rights. In cases of domestic violence or child abuse, the innocent parent can seek sole physical custody.

If you or anybody you know are experiencing or have experienced domestic violence, please contact the National Domestic Violence Hotline at – 1.800.799.SAFE (7233) or text “START” to 88788, You are not alone.

How to Apply for Child Custody

The custody process usually begins by filing a petition and the relevant paperwork in the appropriate court. The parties may also need to present a clear parenting plan.

In child custody cases, the court considers the child’s best interest before anything else, and its decision is made on this basis. The parents’ feelings and emotions are irrelevant here. Evidence and information presented to the court are what count. For instance, evidence of the other parent’s negligence, history of violence, or substance abuse may be relevant when seeking sole custody

Violation of previous court orders is another factor that could influence the decision made by the judge. The paternity of a child is also an important factor in determining a child’s custody when the parents are not married.

Child Custody Evaluation

In certain states, the judge in a custody case may request both parents to participate in a child custody evaluation. A child custody evaluation is a court-ordered investigation to determine the best approach to the child’s welfare and interest.

The evaluation usually takes place when both parties are unable to come up with a good parenting plan. The evaluator is usually a mental health professional and is appointed by the court at the expense of both parents. 

The evaluator would meet with both parents, the child, school teachers, and health care providers to assess the child’s living conditions, health, and safety. At the end of the investigation, the evaluator would submit a confidential report to the court, recommending an ideal parenting plan for the child.

Joint custody is the most common and preferred child custody arrangement. Therefore, parents should have a mutually agreed upon parenting plan, especially if there are no concerns about abuse or the child’s health.

If you cannot propose a parenting plan and don’t know how to proceed, you could contact a family law attorney for help.

How a Family Law Attorney Can Help in Your Child Custody Case

Child custody cases are difficult to go through, coupled with the stressful nature of divorce and separation, you do not know whether you will see them again or if they can meet important relatives from your side of the family. Most importantly, you want to know your co-parenting options after divorce.

A skilled family law attorney can do all of the above and help to ensure a suitable outcome for you. Your lawyer can represent you in court and help you put your case together. They can assess your specific case and identify circumstances, facts, and evidence that could help your case. 

It might be helpful to hire a family law attorney if you have struggled to resolve custody disputes on your own.

Get Help at Family Court Direct

Everyone deserves sufficient and competent representation. We are committed to bringing you various affordable legal resources to help you with your case. 

Family Court Direct gives you access to legal options, document services, and independent legal practitioners that can offer you the needed legal information and affordable representation.

Contact us to get help on custody. You can also visit our website and review our custody and visitation FAQs to get more information.