Legal custody vs physical custody: What’s the difference? | Family Law

Published on July 5, 2023 · 5 min read

Figuring out child custody during a divorce process means determining two things: who has the right to make certain decisions about the child (called legal custody) and where the child lives (physical custody). The parents may share both types of custody, or one parent may have full custody in one or both areas of the child’s life.

Whatever the breakdown, both parents have responsibilities and rights. Use this guide to learn more about legal custody vs physical custody, how courts determine both types of custody and how an attorney may be able to help you with a custody case.

What is legal custody?

Legal custody refers to the authority granted to an individual to make certain decisions regarding a child’s well-being and upbringing. Typically, a parent with legal custody can make decisions regarding the child’s:

Education
Health
Religious upbringing

A parent can have sole legal custody or joint legal custody of the child.

When a parent has sole legal custody, they typically aren’t required to consult the other parent before making decisions regarding the child.
When two parents have joint legal custody, they share decision-making authority.

Courts are typically hesitant to cut one parent out of the decision-making process entirely. So unless certain facts make sole legal custody more appropriate, most parents share joint legal custody.

What rights does a parent without legal custody have?

Even if you don’t have legal custody, you have certain rights. For instance, a parent without legal custody might be entitled to visitation or parenting time. The amount of time and frequency of visitations are ultimately up to the court if the parties don’t agree to an arrangement willingly. During your parenting time, you may have the right to make decisions regarding the day-to-day care of your child.

What is physical custody?

Physical custody focuses primarily on the physical care and supervision of the child. For example, physical custody governs matters such as:

Where the child resides
Which parent provides primary care and supervision of the child
Visitation and parenting time

As with legal custody, physical custody can be sole or joint.

Sole physical custody doesn’t typically mean that a parent has custody of their child all the time. In most cases, sole physical custody means the child primarily resides with one parent. Usually, the other parent has regular visitation with the child.
Joint physical custody doesn’t necessarily mean equal physical custody. It’s possible that one parent is awarded a greater portion of time with the child.

Responsibilities of the non-custodial parent

While you have rights as the non-custodial parent, you may have certain obligations and responsibilities to comply with as well. Perhaps most important is the obligation to pay child support, if ordered by the court.

In most cases, the non-custodial parent has a legal obligation to provide financial support to the custodial parent. This helps ensure that the child’s needs are adequately met and that the custodial parent has access to adequate funds to care for the child.

Factors considered when making custody determinations

The court’s primary consideration in awarding legal and physical custody is the best interest of the child. Factors courts commonly use to determine what’s in the best interest of a child include the:

Wishes of the child, taking into consideration their age and maturity level
Mental, physical and emotional needs of the child
Mental and physical health of the parents
Relationship between the child and their parents and other family members
Ability of each parent to provide a safe and stable home environment
Distance between the respective parents’ homes
Work schedules and availability of each parent
Willingness of the parents to communicate and cooperate with each other in making decisions for their child
Existence of domestic violence or abuse in the home
Any other factors deemed relevant by the court

When to talk with an attorney

Child custody matters can be complicated and contentious. Having an attorney in your corner may help alleviate some stress and make the process feel more manageable.

An experienced family law and child custody attorney can help you:

Understand the law in your jurisdiction and evaluate how it applies to your particular situation
Analyze your case and assess the strengths and weaknesses of your position
Develop a legal strategy
Gather evidence to help support your claims
Locate and prepare potential witnesses who may be able to testify on your behalf
Negotiate with your child’s other parent and their legal counsel in an effort to reach an amicable and mutually agreeable custody arrangement
Draft and file relevant court documents
Appear in court on your behalf
Seek modification of existing orders

Hiring a lawyer isn’t a prerequisite to proceeding with your case. However, doing so may increase the chances of getting a custody arrangement that fulfills your desires.

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