Physical vs. Legal Custody
In many cases, the parents of a child can come to an agreement regarding custody of the child. All too frequently, however, parents are unable to agree on this sensitive topic, and court intervention is required. Custody is comprised of both physical custody and legal custody. In determining which parent should have legal or physical custody of a child, a court will consider many factors but will ultimately make its decision based on what is in the best interest of the child.
What is Physical Custody?
Physical custody is a parent’s right to have the child to reside with him or her. Physical custody may be granted solely to one parent. It is rare for a parent to have sole physical custody of a child, however, unless the court finds his or her co-parent to be unfit. Parents may also share physical custody evenly, or the child may reside with one parent the majority of the time. If the child resides with one parent more often than the other, the home of the parent the child resides with more frequently will generally be considered the child’s primary residence.
Factors Considered in Granting Physical Custody
Courts consider several factors in determining which parent should be granted physical custody of a child, including which parent has historically been the primary caretaker of the child, which parent has the resources and support to best take care of the child’s physical and emotional needs going forward, and which parent lives in the child’s current school district. If the child is of an age at which the court considers he or she is able to make a reasoned decision, the child’s preference as to which parent he or she lives with may be considered as well. As is the case with any decision regarding children, the court’s foremost consideration is what is best for the child.
What is Legal Custody?
In addition to the physical custody of a child, the courts must determine which parent should be granted legal custody of a child. Legal custody is the right to make major decisions regarding issues such as the child’s education, health, and religious upbringing. In other words, it is the right to make legal decisions regarding matters that relate to the child.
Joint Versus Sole Physical and Legal Custody
In general, courts are reluctant to sever the parent-child relationship and will work to allow both parents to make decisions regarding the child’s education, health, and religion, allow each parent to spend time with the child, and will grant some arrangement of joint legal and physical custody. Regardless of what split of legal and physical custody a court orders, as a practical matter there is some overlap between the two. For example, whichever parent the child is with at a given time effectively has the right to make decisions regarding the child while the child is in his or her custody. If a child needs medical treatment during a parent’s custodial time the parent will likely not be found to be violating a custody order for seeking treatment even if that parent does not have legal custody of the child.
Whatever determination a court makes regarding the physical and legal custody of a child, it is important to remember that custody orders are not permanent and can be modified upon an agreement or by petitioning the court for a modification. As circumstances, needs, and resources change over time, what works best for a child and his or her parents when the child is young may not be beneficial to the child as he or she grows older. As such, it is prudent to periodically review any order that affects your rights or obligations regarding the custody of your child.
