Legal and Physical Custody

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 What is Legal Custody?

Legal custody gives a parent the right and obligation to make decisions regarding a child’s upbringing. These decisions may include factors regarding the child’s schooling, religious education, discipline, and medical care.

If parents are married or listed on the child’s birth certificate, they are presumed to have legal custody of the child, and therefore entitled to make decisions about the child’s well-being. However, a parent can lose legal custody of their child during proceedings related to divorce or separation, or in cases that involve allegations of child abuse or neglect.

Is It Possible To Establish Joint Legal Custody?

Yes, joint legal custody is possible. Often, a court may decide to grant joint legal custody to both parents in divorce or separation proceedings. This grants both parents equal rights to make decisions about child rearing. Joint legal custody is most likely to be awarded if the parents show that they are both willing and able to cooperate in making decisions together.

What is Physical Custody?

Physical custody is very much what it sounds like. This term refers to the physical placement of the child—where the child will live or spend most of their time. If a parent has physical custody of a child, they very likely also have legal custody.

If the child lives primarily with one parent and visits the other, the parent that the child lives with (called the “custodial parent”) is said to have primary physical custody or sole custody. The other parent (called the “noncustodial parent”) has rights to visitation and parenting time.

Just because one parent has physical custody does not mean that the other parent has lost the right to be a parent to the child. The noncustodial parent may, depending on the court’s decision, have legal custody of the child and the right to work with the custodial parent to make decisions for the best interests of the child.

When making a decision determining physical custody, the court will consider several factors, including:

  • The child’s ability to adapt to new environments;
  • Location of the child’s school and any special service providers;
  • Location of child’s healthcare providers;
  • Any special needs the child may have; and/or
  • The ability of each parent to provide for the child’s daily needs.

Other factors that may be considered are the child’s age, any safety concerns, and consistency. If one parent has been the child’s primary caregiver, the court may defer to that parent if the child is very young. Courts generally prefer to keep children’s routines consistent whenever possible, and will try to limit changes that may have a negative impact on the child.

Custody may be denied if there is a concern that the child’s safety may be compromised. When weighing these factors, the court will use a standard that takes into account the best interests of the child—will the child be healthy, happy, safe, and educated in a stable environment?

The determination is not just about whether you’re a fit parent, but aims to keep the child’s life consistent and stable while making sure that both parents have the opportunity to be a part of the child’s life.

Is it Possible to Establish Joint Physical Custody?

Some courts will award joint physical custody when the child spends significant time with both parents. This arrangement generally works best if both parents live in close proximity to one another—this creates less stress for the child and helps to keep a somewhat normal routine with school and every day activities.

However, courts rarely award joint physical custody because the social and psychological impact of living in two separate communities can be stressful for a child, and may not be considered to be in the child’s best interests. It is far more common to have an arrangement where the custodial parent and noncustodial parent share visitation.

What are Joint Custody Arrangements?

In joint custody arrangements, it is a good idea to work together as parents to create a schedule that accommodates both of your work requirements, housing, and the child’s needs. If you can’t agree, the court will create a custody agreement that both of you must stick to.

Some common custody arrangements have the child splitting weeks between parents. Others include alternating months or other periods of time. Still others provide for the child spending weekdays with one parent while spending weekends and holidays with the other parent. While these possibilities are common, it is best if both parents are able to come to an agreement that works for both parties.

One other option, which is far less common, is known as “bird’s nest custody.”  In this custody arrangement, the child lives in the same house while the parents circulate in and out, taking turns looking after the household.

Bird’s nest custody can be a challenge to arrange and difficult to maintain, as parents may fail to agree on certain aspects of running the household. However, this arrangement can provide a stable life for the child after a separation or divorce, allowing them to remain in the same house and a familiar environment.

If you already have a joint custody agreement, it is a good idea to maintain detailed and organized records of any expenses you incur. Keep receipts for things like groceries, school supplies and after-school activities, children’s clothing, and medical expenses.

If the other parent claims that they have spent more money on the kids than you have, it will be helpful to have records available to support your points.

Do I Need a Lawyer for Issues with Legal and Physical Custody?

Remember that custody arrangements are intended for you to be an active part of your child’s life, while keeping their best interests at the center of the agreement.

If you are negotiating child custody, or looking to make changes to an existing custody agreement, it is in your best interests to consult a local child custody lawyer. A lawyer experienced in family law can help you understand your rights, navigate the court system, and create a custody arrangement that you and your children can live with.

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