MATHEWS: Physical custody v. legal custody: Is there a difference?

When most people hear the word “custody,” they often think that this term simply means who a child lives with.  However, custody is actually broken down into two types of custody: physical custody and legal custody.  Understanding the difference between these two types of custody is important because each impacts a parent’s responsibilities in regards to his or her child as well as when a parent is required to communicate with the other parent regarding decision-making.

“Physical custody” addresses who the child lives with.  If parents have “joint physical custody,” that means the child lives with one parent part of the time and with the other parent the rest of the time.  The time split between parents does not have to be equal although most parents with “joint physical custody” try to split time equally.  The parent who is caring for a child at a given time is responsible for routine decisions involving the child such as setting a bedtime or limiting the amount of television a child can watch. 

On the other hand, if a one parent has “primary physical custody,” that means the child lives primarily with just that parent — even though the child may have overnight parenting time with the other parent.  The parent who has “primary physical custody” would be responsible for the majority of routine decisions involving the child as the child is primarily in that parent’s care.  However, when the child is spending parenting time with the non-custodial parent, that parent would be responsible for routine decisions regarding the child.

If you were reading closely and thinking about what is covered by “physical custody,” you may be wondering who makes the major decisions regarding a child then such as what school to attend or whether the child should get a vaccine.  These are major decisions that can significantly impact the upbringing of a child that do not necessarily fit the definition of “routine decisions” such as setting a bedtime or limiting television time. 

Which parent makes major decisions for a child is determined by who has “legal custody” of the child.  Legal custody addresses who is responsible for making major decisions for a child including, but not limited to, medical decisions, educational decisions and decisions about religious upbringing.  If parents have “joint legal custody,” that means the child’s parents must communicate and cooperate with each other to reach mutual decisions regarding major issues affecting their child.  joint legal custody is typically best in a situation where parents can communicate well with each other.

If parents are not able to communicate well with each other, or it is not practical for the parents to communicate regularly regarding major decisions — such as when one parent is incarcerated and may not be available to talk on the phone when a major decision needs to be made for a child — one parent may be awarded “sole legal custody.”  Sole legal custody means that just the one parent is responsible for making major decisions regarding the child.  The parent with sole legal custody can discuss major decisions with the other parent; however, they are not required to.

“Physical custody” and “legal custody” designations provide guidance as to which parent is responsible for making certain decisions regarding a child when the child’s parents are not living together and raising the child in separate households. 

While these terms help establish who is responsible for routine or major decisions regarding a child, it is always important to remember that no matter what the custody arrangement is, both parents are always responsible for ensuring their child knows he or she is loved and cared for. 

Communicating and co-parenting together — even when not required by court order — is a great way to show a child how much their parents love and care for them.

If you have questions about the FOC that you think would be helpful to address in future columns, please send them to the FOC email address:  foc@cassco.org

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