Family Law

Physical and Legal Custody of Children in Divorce

In divorce, parents' first concern is usually where the children will live. But parenting involves much more than putting a roof over your children's heads. Someone must make decisions for them as well. That's why most states divide custody into two categories: physical custody and legal custody.

Physical Custody Is About the Child's Home Base

Children spend most of their time living with the parent who has physical custody. Typically, they live with one parent during the week and with their other parent several weekends a month. In this arrangement, one parent has physical custody and the other has visitation rights.

The parent who is granted physical custody is often the one who spent the most time caring for the children before the divorce, such as by overseeing homework and driving them between extracurricular activities and friends' homes.

Legal Custody Means Making Decisions

Parents generally make small day-to-day decisions for their children during the times they are in their care. Legal custody does not refer to these decisions. Instead, it addresses big issues, such as whether a child should go to public or private school, if a child is mature enough to have a driver's license, and if medical care is necessary.

Custody Can Be Sole or Joint

Most courts want to give legal custody and decision-making power over big issues to both parents; this is joint legal custody. Judges are less likely to award joint physical custody, but they often will when parents request it. Joint physical custody rarely means that children live with each parent an equal amount of time.

However, the parent who would normally have visitation has much more time with the children than a normal visitation schedule would provide, usually at least 25 percent of the year. Physical and legal custody do not both have to be joint. One parent can have sole physical custody, while both parents share joint legal custody.

Judges Consider Several Factors

Judges consider several factors when they award physical and legal custody to one or both parents. Courts usually base sole physical custody on the best interests of the children, placing them in the home where they will receive the best, most consistent care. Judges usually order joint legal custody when parents get along well enough to make reasonable, responsible decisions together.

A Child Custody Lawyer Can Help

The law surrounding physical and legal child custody is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a child custody lawyer.

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