If you are a party to a recent or currently pending divorce and have children, you are probably familiar with the terms legal custody and physical custody. However, many people don’t know the vast difference between the two. Legal custody is the right of a parent to make major decisions regarding the welfare, health and education of a child. This includes issues regarding where the child will attend school, what kind of religion they will engage in, or whether a child will receive medical care or not (except emergency needs). In California, if parents have joint legal custody of their child decisions regarding welfare, healthcare, education, and religion should be decisions made collaboratively. Joint custody is very common in California and most parents share joint legal custody unless one parent is deemed unfit, parents are unable to make decisions together, or it would be in the best interest of the child for one parent to have sole custody. Physical Custody refers to where does the child reside and who is responsible for the direct care of the child. The proper, but often misleading terminology is that the parent having more than 50% of the time with the children is the primary custodian and the other parent has visitation. This does not mean that the primary custodian has sole custody. If the other parent has even a small amount of time with their children they are considered to have joint custody. It is very rare for a parent to have sole legal custody as it is only granted in the most severe cases of a parent being of danger to the children. Divorce can be a very emotional time, for both parents and children, and issues of custody can be especially daunting and should be handled carefully and often with representation. Although parents are encouraged to collectively make the best decision for the child, sometimes court and legal intervention to determine the child’s “best interests” are necessary and beneficial if parties cannot agree.
- How is legal custody different from physical custody?