Legal Custody vs. Physical Custody: What’s the Difference?

By November 9, 2017Blog
Legal Custody vs. Physical Custody | National Family Solutions

Misconceptions abound when it comes to custody of children after a divorce. In most cases, joint custody is awarded — but what does that mean? Many people are confused when it comes to legal custody vs. physical custody. Does joint custody mean that each parent has the children 3.5 days per week? Who gets to decide which school the kids go to if the parents disagree? Check out this guide to some of the basics concerning custody.

 

Legal Custody

Whoever has legal custody of the children gets to decide where they go to school, whether they have optional medical treatments, and which dentist they see. Most of the time, parents are awarded joint legal custody. This means that the parents both have some input on the decision.

Legal custody does not necessarily mean, however, that each parent gets a completely equal say. In general, the parent who has physical custody of the children can make decisions about what the child eats or where they go to church unless that has been spelled out in the parenting plan or the judgment. For example, if one parent is a vegetarian and the other is not, the child can eat meat with one parent and abstain when with the other. Whoever has the child with them is able to make that type of decision (as long as it’s not neglectful or abusive).

Minor medical decisions such as whether the child should go to urgent care for a rash or whether it can wait until the next day can also generally be made by the parent in charge at that time.

If the parents cannot decide on which school a child should attend or which orthodontist should oversee the child’s braces, usually the parent with primary physical custody makes the final decision.

 

Physical Custody

Physical custody is what most parents are referring to when they say they are fighting for custody of their child. Physical custody determines where the child lives. Occasionally, parents are awarded 50/50 custody, which means that the children live with each parent the same number of days per month. Most of the time, however, one parent has primary physical custody and the other has secondary physical custody. Sometimes, one parent is awarded sole physical custody and the other parent might or might not get visitation.

The reason that 50/50 custody is chosen only occasionally is that in most cases, it’s not in the best interest of the child. For example, if a child is school-age and both parents don’t live in the same school district, this can make it difficult for the child to spend school nights with the parent living outside of the district. Also, it’s not necessarily beneficial for younger children to spend 15 nights per month at one parent’s home and 15 nights at the other’s.

A common way that physical custody might be awarded is for the children to stay with one parent most of the time. The other parent will take them every other weekend and perhaps one evening during the week. There are many other possible options; developing a parenting plan can determine where the child will spend his or her time throughout the course of the month.

 

Does Custody Impact Child Support?

Each state has its own way of determining child support. In most, the parent who has secondary physical custody (or no custody, if sole custody was awarded to the other parent) generally pays child support to the parent who has primary physical custody. However, this varies depending on the income level of each parent.

The main concern is that the child should, whenever possible, have the same standard of living that they’ve been accustomed to. Since this is difficult when one household splits into two, the court will take into consideration the income of both parents, the percentage of time that each parent is responsible for the child, the expenses that must be shared (daycare, medical expenses, and so on), and some of the obligations that each parent must pay for outside of the child support agreement.

It’s normal to have many questions about legal custody, physical custody, child support, and other issues pertaining to the care of the children during and after your divorce. A legal resource center like National Family Solutions can help you research these issues and understand what you might be entitled to when it comes to custody of your child. Once you understand the issues, you’ll be better-equipped to contribute your ideas to the parenting plan or, if necessary, to represent yourself in court to pursue whatever is in the best interest of your child.

 

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