Child Custody: Physical Custody vs. Legal Custody

One of the first things that parents need to understand before making custody decisions is that there are two types of child custody—legal and physical.  Decisions regarding both types of custody are made with the best interests of the child in mind but the things that courts consider in reaching their decisions differ between the two.

Legal custody refers to the power to make important decisions regarding the general welfare of the child, such as: choice of school that the child attends, extracurricular activities, type of religious education and practice, decisions involving medical and psychological needs of the child etc.

Physical custody refers to the actual place where children live on a day-to-day basis.

There are different considerations that the court takes into account when determining legal and physical custody.

As a general rule, courts prefer joint legal custody arrangements so that the decision making process continues to be shared by both parents.  This general rule favoring shared legal custody does not hold in cases involving abuse, neglect or the level of hostility between the parents so great that it makes cooperation on the issues affecting children impossible.

Courts also generally prefer joint legal custody.  However, joint legal custody does not mean that the time that the children spend with each parent will be divided equally.  The way that the joint physical custody often works out in practice is that one parent continues to serve as a primary caretaker of the child because such arrangement is found to be in the best interests of the child.

 


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