Legal & Physical Custody: What You Need To Know

Legal & Physical Custody: What You Need To Know

Posted to Resource Articles by Susan Reach Winters on Mon, 10/05/2009 - 4:10pm

During the divorce process, one of the key decisions to be made is who will look after the children and what type of custody rights both parents will have. Often, this is uncontested based on family roles (for example, one parent is the stay-at-home-caregiver while the other has been the breadwinner). Other times, it may be contested, with both parents fighting over custody. This may involve assessments by mental health professionals and the Court as to what is in the best interest of the children.

However, whether custody is uncontested or contested, you still need to know about custody arrangements, so that you properly understand any agreement you sign. The legal names may differ slightly from State to State, but there are two types of custody rights that need to be decided:

Legal Custody

Legal Custody is the right to be consulted, advised and involved in major decisions concerning the health, welfare, and education of the child (such as consent to an operation, choice of school, etc).

• Legal custody can be Sole (one parent has soledecision-making responsibility) or Joint (both parents have sharedresponsibility and a duty to consult with each other on major decisions).

• Courts favor giving legal custody to both parents unlessthere is a good reason otherwise, e.g., abandonment, incarceration, or a riskto the children.

• If legal custody is jointly held, the only downside isthat you may need to go to Court if you cannot agree on a major decision.

Physical Custody

Also known as Residential Custody, this is the right to be the primary caregiver or "every day parent" with whom the child lives.

• Physical custody can be primarily with one parent, i.e., the child lives with one parent most of the time and the other parent has parenting time on weekends/evenings.

• Alternatively can be equally shared — the child spends approximately 50% of the time living with each parent, e.g., three or four days each week or alternate weeks.

• The amount of time a child spends overnight with eachparent can have an impact on child support, as in many States the child support guidelines allocate child support in relation to the time each parent has physical custody.

• Deciding whether to seek joint or sole physical custody depends on the role each parent has in the child's life and how much time they have available for parenting (in the face of work commitments).

• In the event that the parties cannot agree on what the physical custody arrangements should be, the Court will hold a trial and take evidence from the parties, and most likely will appoint a mental health professional to give an expert opinion.

In conclusion, understanding the differences between legal and physical custody, and between sole or joint custody, will help you make an informed decision when it comes to deciding what type of custody arrangements are right for you and your children.

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