Custody

What Is Legal and Physical Custody?

Understanding the Different Forms of Custody

Part of the divorce process is determining legal and physical custody of the children. Essentially, the parents and court will need to know who is making decisions on behalf of the children, called legal custody, and who the children are living with, called physical custody. If the parents are unable to amicably reach a decision on custody, the court will make the decision for them.

Legal Custody

Legal custody determines who will be responsible for making decisions on behalf of the children’s day-to-day activities, mainly involving healthcare, religion, education, and extra-curricular activities. Generally, as long as both parents can effectively communicate and make joint decisions, called co-parenting, then they will have joint legal custody. This means that decisions regarding the children must be discussed and made between both parents. If, however, the parents are unable to effectively communicate or make joint decisions together, it is likely that only one parent will have legal custody, called sole legal custody.

Physical Custody

Physical custody concerns who the children live with, either with one parent or both. Typically, the children reside with only one parent consistently, and the other parent will have regular parenting time, formally known as visitation. The court will take into consideration the geographical location, history of caregiving responsibilities, employment schedules, and ages of the children when determining physical custody. If one parent is given or awarded primary physical custody, this means the children reside with that respective parent at least two-thirds of the time, with the other parent receiving one-third of the time in the form of parenting time, or visitation.

Joint Custody

If the parents are awarded joint physical custody, this means that each parent has the children fifty percent of the time, or as close to equal as possible. Sometimes, if the parents cannot decide on legal or physical custody for the children, a third-party professional, sometimes another attorney or mental health professional, may be called upon by the court to make recommendations regarding which parent, or maybe both, should have legal and/or physical custody.

It is always best to consult with an experienced attorney when custody of the children is a factor in a divorce, such as Sawin Law, P.C. If you and your spouse are nearing divorce, contact Sawin Law, P.C. to serve as your advocates to fight for the custody decision you deserve.

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