The difference between legal custody vs physical custody is simple. Legal custody is the right to make decisions about a child’s health, education, welfare, and other such issues. Physical custody is the child’s physical location (where the child lives).
Court orders always designate a primary legal and physical custodian. Usually, the same parent has primary legal and physical custody. Generally, all children have the same custodians, but that’s not always the case.
The parental presumption (a/k/a the “father knows best”) presumption is very strong in most states. In most cases, only the judge may overrule the primary legal or physical custodian’s decisions, although co-parenting laws require the primary custodian to strongly consider the other parent’s position.
What a Legal Custodian Does
Choice of school, physician, and lifestyle might be the three most important responsibilities of a legal custodian.
Legal custodians may decide if a child goes to a public or private school. Additionally, legal custodians have control over the child’s extracurricular activities, especially if the children are young.
Choice of school, and choice of day care, is a common dispute. Typically, Mother wants the children to attend a pricey Montessori after-school program on the other side of town. Father counters that the YMCA after-school program in the children’s school is just as good.
Ideally, Mother and Father would compromise and send the children to a mid-priced after-school program down the block. However, if Mother is the primary legal custodian, she has the absolute right to decide. If she and Father disagree, about after-school programs or any other legal custody issue, she may break the 1-1 tie.
Filing a motion to modify is probably Father’s best option in this situation. Judges usually refer contested matters to mediation. A mediator helps parents find common ground and compromise.
Additionally, the revised order could include specific language, like “the children will attend XYZ after-school program.” If Mother wants to change that order, she must file her own motion to modify.
Duties and Responsibilities of Physical Custodians
Custody orders almost always include very specific physical custody provisions. The traditional every other holiday and every other weekend arrangement works well in many cases. Some alternative physical custody arrangements are becoming increasingly popular. They include:
- Empty Nest: The children remain in the same place at all time, usually the family’s home prior to divorce, and the parents switch residences, according to a traditional or other schedule. This setup usually benefits the children, but it obviously only works in some cases.
- Extended Weekend: Small changes over a long period of time usually produce dramatic results. That’s the theory behind extended weekend visitation. Starting weekends on Thursday night and ending them on Monday night brings the physical custody division much closer to 50-50.
- Block Scheduling: The traditional schedule makes busy lives busier, because children hop back and forth several times a month. A block schedule is much more stable. Children spend two weeks with parent A, two weeks with parent B, and the cycle repeats year-round.
The physical custody schedule is usually a fallback. Most custody orders allow visitation by mutual agreement at any time.
When Can Sole Legal Custody Be Awarded?
Sole custody usually refers to legal custody only. If the nonprimary parent has a physical impairment, like alcohol addiction, or a history of poor decision making, the judge might award sole legal custody to the other parent.
Sole physical custody is very rare. It’s almost never in a child’s best interests to cut the child off from a parent. However, judges often order limited or supervised visitation, if contact with a parent could endanger a child’s physical safety or impair his/her emotional well-being.