Legal custody and physical custody: What is the difference?

If you are going through divorce, one of your biggest concerns will be how it affects your children and, most likely, you’ll also be dealing with the emotions of not spending as much time with your children if you are sharing custody of them with your ex. One of the issues you’ll confront is sharing legal custody of your children versus sharing physical custody.

What do each of these terms mean? How will they impact how much you see your child and how much you’ll have to negotiate with your spouse about choices for your child?

Legal Custody

Having legal custody of a child means that you have the right to decide where they go to school, whether they have optional medical treatments, which dentist they see and what religion they are raised in. Most of the time, parents are given joint legal custody, meaning both parents have a say in these decisions.

However, that doesn’t mean each parent always gets an equal share in the decisions. For instance, the parent who has physical custody can decide what a child eats (will it be organic fruits and vegetables or something from a fast-food drive thru?) or whether the rash they developed overnight necessitates a trip to the doctor. As long as neither parent is being abusive or neglectful, the court gives parents joint legal custody, even if one parent has physical custody.

If parents can’t agree on which school a child should attend or agree on a physician or orthodontist, the parent with physical custody generally makes that decision.

Physical custody

If parents live close enough, they often split physical custody of their children, spending nearly equal times at both homes. However, sometimes one parent receives sole custody. This most often happens in these circumstances:

  • The parents agree sole custody is in the child’s best interests.
  • One parent travels extensively for work, making it difficult for children to live with them.
  • Parents live far enough away to make joint physical custody impossible.
  • Your child is young enough they need an age-appropriate custody schedule (perhaps a mom is breastfeeding a baby and can’t be away from the child for extended periods of time).
  • A parent has a history of mental illness or is mentally unstable or has a history of child neglect or largely has been absent from the child’s life.

No matter which form of physical custody your child will have, it will benefit them to see their parents work together on legal custody decisions. Communication is the key to making this work and showing your child you can maintain a civil relationship with your former spouse.

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