What is Legal Custody?
If you’re going through a divorce and have a child, you’ve probably been hearing a lot about legal custody. Ask your friends or family members about what’s going on in your divorce, and legal custody may be the first or second thing that pops up in the conversation.
Legal custody is a fundamental component of custody decisions. In general terms, legal custody refers to the authority a parent or parent’s ex-spouse has to make decisions about their child’s wellbeing. This could include medical decisions, which school they attend, or which religious organization they belong to. Essentially, it is the authority to make crucial choices about a child’s upbringing while the child is under their care.
Note: some states use the terminology physical custody as a simplified term for legal custody. Generally speaking, though, legal custody includes physical custody, so it’s advised to think of both terms and definitions as broadly encompassing the same arrangements.
Legal custody is not to be confused with the terms primary parent or primary caregiver . Though there is typically significant overlap between these three categories, legal custody is not the same as primary parent, the primary caregiver, or the best parent. Instead, legal custody is a decision about who gets to make "big ticket" choices in the child’s life.
The court will consider a variety of factors in determining the decision-maker when it comes to your child. For instance, if your work requires you to travel frequently, the court will work to keep your work obligations in mind. Perhaps you are frequently at sea because you are a commercial fisherman, or are involved in the tech industry or something similar. If your work requires you to be away from home more often than most parents, this will be factored into the court’s decision in a custody arrangement.
Other factors that will be considered in determining who has legal custody include both parents’ social networks, where they live, where their children go to school, etc. In times of conflict, the courts will tend to favor a choice that results in the least maintenance and disruption to the child’s social network.
What is Physical Custody?
Physical Custody refers to the rights and obligations of a parent to have his or her child reside with him or her. In a joint physical custody arrangement, the child resides equally with both parties, or as close to equally as possible. In joint physical custody cases, the child spends over 50% of his or her time living with each parent, and shares roughly equal parenting time with both. For instances where the parties do not share joint physical custody, a determination regarding physical custody goes hand-in-hand with the allocation of parenting time. Physical custody in North Dakota falls under the provisions of North Dakota Century Code Section 14-09-6.10. In most cases, there is a schedule that has been determined by the parties and/or the Court that sets out the child’s whereabouts on a day-to-day basis. For example, the schedule may determine that the child resides with Parent A every Wednesday and Thursday (the parties are to alternate weekends) during the school year, and with Parent B every weekend and during holidays. The parenting time schedule allocates the exact times and days that the child will spend with each party. This determines parenting time as opposed to physical custody.
Legal Custody vs Physical Custody: The Main Distinction
Legal custody and physical custody are two components of child custody that serve very different purposes. Legal custody is a decision-making authority bestowed upon one or both parents that involves high-level decisions regarding the well-being of a child. Physical custody, on the other hand, is a legal designation that describes where a child will live most of the time and is usually awarded to the parent who has the child living in their home a greater majority of the time.
While legal custody is more about the "big picture" decisions surrounding what is best for the child, physical custody describes the child’s day-to-day environment. Nevertheless, these two types of custody can have a significant effect on the other. For example, a parent that has primary physical custody will often have geographic control over where the child lives. Because the parent with primary physical custody is likely to dictate where the child resides, including what school district they attend, they are often awarded legal custody as well. Alternatively, joint legal custody often arises when parents have shared physical custody and can agree on what is best for the child.
Keep in mind that the award of legal custody does not mean that one parent has total control over all aspects of a child’s life. Even if only one parent has legal custody and therefore has final say on certain issues, the other parent still has a right to participate in the decision-making process. It is also important to remember that even if one parent is granted primary physical custody of a child, a court may still grant legal custody to both parents. Although it is natural for parents with primary physical custody to make the day-to-day decisions about a child’s health, education, and welfare, it does not eliminate the need for legal custody.
Legal custody will not automatically be awarded to the same parent that has primary physical custody of a child. Even parents who do not have primary physical custody may lawfully have joint legal custody over a child. In fact, if a child is being abused, neglected, or placed in an unsafe environment, a court may award temporary legal custody to the parent no longer with the child. Although it is important for parents to seek out the legal custody arrangement that is best for themselves and their children, it is more important for parents to ensure that their child’s safety and well-being always comes first.
The Difference Between Joint vs Sole Custody in the Context of Legal and Physical Custody
When awarded "joint legal custody," both parents are given equal rights to participate in and guide major decisions affecting the child, with issues generally revolving around health, education, religion, and medical care. Each parent is required to keep the other informed and involved in the decision-making process. In contrast, "sole legal custody" gives full decision-making authority to one parent over the child’s welfare. This is a rare award in custody cases, and generally only occurs when the Court finds a serious threat of harm to the child from the other parent. Enforcing legal custody is something we have written about before.
Two parents can be awarded "joint physical custody," meaning there is a regular and recurring time for both parents to physically share the child in their homes, and there are no major disagreements about the amount of parenting time awarded. Conversely, "sole physical custody" means one parent has the child reside with him or her most of the time, with visitation sometimes granted to the other parent.
The more common forms of custody are "joint legal custody" and "sole physical custody," where the decision-making power is mutual among both parents but the child resides primarily with one parent.
Custody Considerations for Judges
When determining legal and physical custody, the court will consider a variety of factors that are important to the child. The most common denominator in all custody cases is the standard of "best interests of the child". The court will first determine the amount of legal custody and then will determine the amount of physical custody. Determining parenting time and parenting responsibilities is next once the amount of legal and physical custody is determined. A court will look at the following factors when determining legal and physical custody:
The desire and ability of the parents to assert parental authority and to maintain a relationship with the child;
The love, affection and emotional ties existing between the child and the child’s parents and siblings;
The ability of the parents to give the child love, affection and guidance;
The ability of the parents to provide the child with food, clothing, medical care and other material needs;
The length of time the child has lived in a stable , satisfactory environment and the desirability of maintaining continuity;
The permanence, as a family unit, of the existing or proposed custodial residence;
The moral fitness of the parents and the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship;
The mental and physical health of the parties and the child;
The home environment of each parent and the immediate health of the parents and the child;
The child’s educational needs and the promotion of those needs;
The child’s preference, if the child is sufficient in age, intelligence and maturity to express a preference;
The willingness and ability of parties to parent jointly, cooperate, and encourage a continuing relationship between the child and the other parent;
The past and potential of the parents’ performance, as well as the performance of other people who have been involved in the child’s welfare;
Hundred dollar bill;
Any other unexpected factor.
Custody Modifications
There are many reasons why a parent may seek to modify a custody order. It may be due to a change of employment or relocation, the presence of drugs or alcohol in the child’s home, the mental health of one parent, physical abuse, child endangerment or abuse, or new grading issues for older children. When legally modifying custody and support agreements, you will likely file a motion and request a hearing.
Pennsylvania courts require that the requesting parent file a Petition for Modification with the Clerk of Courts. The requesting parent must then serve the other parent with a complaint/petition to modify that package the following documents:
In order for a modification of legal or physical custody to be granted, the party requesting the modification has the burden of proof to show a "change in circumstances" of the parties. Custodial issues are not a determination of sole legal and physical custody, but rather in the best interest of the child, the agreement may need to be modified.
Working Together in Co-Parenting Legal & Physically Custodial Arrangements
Co-parenting under legal and physical custody arrangements can be complex, but with effective strategies, you can navigate the waters and ensure your child’s needs are met. Here are some tips to help you and your ex-spouse or civil union partner manage the challenges: Establish Open Communication: Discuss the responsibilities each parent will have in safeguarding the child’s best interests. Your child should feel comfortable coming to both parents and expressing his or her concerns. Boundaries and expectations must be set early and respected. Consistent Schedules: Consistency is key to effective co-parenting. Maintain regular schedules with boundaries. Create a calendar with your ex-spouse or civil union partner that details where the child will be by day and by week. Make this schedule available to the child so he or she is aware of daily expectations, including who will pick him up after school on Tuesdays and Thursday, where he will have dinner, and whose home he or she will stay over with at night. Be Flexible: Unexpected work assignments, emergency situations, or other unanticipated problems can occur. Address these hiccups early and work with your ex-spouse or civil union partner to come up with solutions that work for everyone the best you can. Your child is always watching your behavior and will mimic your problem-solving skills when faced with dilemmas of his or her own . Boundaries: Setting boundaries is often difficult in a divorce or dissolution situation. Do your utmost to respect one another’s time and personal boundaries. Stick to agreed upon pickup or drop off schedules, do not forget appointments, and do not interrupt special time together. Make your time with your child a priority, and do not use selfies or text messages to communicate during this time together. Respect your child’s personal space, and whenever possible, allow him or her to privately communicate with the other parent. Include the Children: While you may not want to involve the kids in every decision, make them feel included. Ask them about activities they would like to engage in with both parents, where they would like to go on vacation, or where they would like to attend school. When they feel included in the decision making process, they are less likely to experience anxiety about being in the middle of the divorce or dissolution. Where possible, include the other parent in the decision-making process as well. Handling custody and visitation arrangements takes sensitivity, consistency, and compromise. With these strategies in place, you can co-parent under legal and physical custody arrangements in a way that prioritizes your child’s well-being.