What Is the Difference Between Physical Custody and Legal Custody?

After a divorce or separation between unmarried parents, most parents will continue being active in their children’s lives. The custody agreement will determine the parents’ rights and responsibilities with their children. The custody agreement will provide for both physical and legal custody.

Child custody agreements can be frustrating for parents. Parents should do their best to work together to find a solution for their family and, most importantly, for their child’s best interest.

If the parents cannot agree, they can use family mediation to produce an agreement before going to a court hearing. If all else fails, the parents may have to have the family court decide the custody dispute. If you have questions about physical custody and legal custody, talk to an experienced child custody lawyer for legal advice.

Are Legal Custody and Physical Custody Different?

Physical and legal custody are different. Physical custody refers to where the child lives and spends time between parents. This is also known as parenting time, timesharing, or visitation. Legal custody is for making major decisions on behalf of the child. A court can grant joint or sole custody to parents.

Legal custody and physical custody are each divided into two types: joint and sole. However, many types of physical custody arrangements are available and usually will take into account the schedules of both parents and the child. Most child custody agreements are made when the couple separates or gets legally divorced. However, courts can also modify custody agreements when circumstances change.

What Is Physical Custody?

Physical custody is where the child physically lives. Physical custody is usually sole, primary, or joint, depending on how much time the child spends with each parent.

Sole physical custody is where the child lives exclusively with one parent. The other parent typically has no visitation rights in this type of physical custody. One parent rarely has sole physical custody. The other parent will often have some visitation rights, even if those are very limited.

• Primary physical custody is when the child spends most of their time with one parent, generally 2/3rds or more. For example, one parent may have the child during the school year. The other parent spends the summer with the child, or more commonly, when the child spends time with one parent most of each week, and the other parent has time every other weekend, and maybe an evening or overnight during the week or on the “off” week.
• Joint physical custody is shared time with the child. Joint custody is usually when parents have equal time or 50-50. This usually requires both parents to live nearby, and it is not too hard on the child. An example could be alternating weeks with each parent or 3-4-4-3 alternating days.

Example of a Physical Custody Dispute

Even with a parenting plan or custody agreement, parents can get into disagreements on whose time is whose. Physical custody disputes are common when there may have been a schedule change with one of the parents or even with the child. For example, a parent gets a new job or promotion, and their work hours or days change. They then want to change the parenting schedule, but the other parent does not want to change. If the parents can resolve the dispute, they may have to go to court to have a judge decide.

What Is Legal Custody?

Legal custody allows parents to make important decisions about raising the minor child. The parents can make legal decisions that affect the child, like religion, education, and healthcare. Most parenting agreements provide for joint legal custody. The court can also grant sole legal custody.

• Sole legal custody is where one parent makes all the significant decisions that affect the child, such as medical care, extracurricular activities, and religious upbringing. The other parent cannot make major decisions for the child.
• Joint legal custody is where parents share in the decision-making process. They have to make choices together for the best interest of their child.

Example of a Legal Custody Dispute

Legal custody decisions include who to use for childcare, religious activities, and healthcare needs. For example, one parent takes the child to get mental health counseling. The other parent does not want the child to get therapy and intentionally does not take them to appointments. The parent with legal custody can decide the child’s medical care needs, except in emergencies. If the parents have joint legal custody and there is a dispute, a judge will determine what is in the child’s best interests.

How Can I Change the Child Custody Order?

If you’re unhappy with the custody order, you can’t take the law into your own hands. You need to go to court to modify a custody order. However, the court may only change a custody order if there has been a significant life change.

For example, if you lived in another state and have since relocated closer to your child, you may be able to modify the parenting order to get shared physical custody.

As another example, if you believe the other parent has a substance abuse problem that is harming the child, you can try to get sole physical and legal custody until the other parent goes through rehab.

How Can a Child Custody Lawyer Help?

When parents have a custody dispute, the first option is to try and work it out. If the parents cannot agree, family custody mediation may help the parents find an alternative to going to court. The last option is to go to court and have a family judge decide what is in the child’s best interests. If you want to change the child custody order to get more time with your child, talk to a child custody lawyer for help. Your family law attorney can represent you in court to get a modified child custody order. Contact a local child custody attorney to discuss your legal options.