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Legal and Physical Custody | LegalMatch Law Library

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What is Legal Custody?

Legal custody grants someone the right and responsibility to make major decisions affecting the best interests of a minor child. Some of these decisions include choices related to education, discipline, religion, residence, and medical care. 

Generally, if a child’s parents are married or listed on the child’s birth certificate, they are presumed to have legal custody. However, legal custody may be lost in court during proceedings related to divorce, separation, child abuse, child neglect, etc.

Is It Possible to Establish Joint Legal Custody?

Sometimes in divorce or separation proceedings the court may decide to grant joint legal custody. An order for joint legal custody grants both parents an equal right to make decisions regarding raising a minor child. However, a judge will likely only award joint custody if the parents demonstrate the ability and desire to cooperate in making child raising decisions. 

What is Physical Custody?

Physical custody to the placement of the child (i.e. where the child will live or spend most of their time.  In deciding physical custody issues, the court applies the “best interest of the child standard”. In applying the best interest standard, the court will evaluate several factors, including:

  • Location of the child’s health providers;
  • Ability of the child to adapt to a new environment;
  • Location of child’s school and service providers;
  • Ability of each parent to provide for the child on a daily basis; and
  • Any special needs of the child.

Is it Possible to Establish Joint Physical Custody?

While a court may decide to award joint physical custody, it is rare. Joint physical custody occurs when a child equally splits time living with each parent. Courts are hesitant to award joint physical custody because the psychological and social impact of living in two separate communities can be stressful for a child, and therefore not usually in the child’s best interest.

There is a type of custody, called “bird’s nest custody”, where parents make sure their children maintain the same residence. The parents take turns living in the house with the children and looking after the household. However, this setup is difficult to arrange and many parents fail to agree. But, studies show that this type of custody gives the child the most stable life after a separation or divorce. 

Do I Need a Lawyer for My Child Custody Issues?

If you are looking to establish or modify child custody, it would be wise to consult with a family lawyer. Working with an experienced family lawyer can help you understand your rights, navigate the complicated family court system, and represent you in custody proceedings.

Photo of page author John Kirby

, LegalMatch Legal Writer

Last Modified: 11-22-2017 12:50 PM PST

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