Physical Custody vs. Legal Custody

What Is the Difference? How Does the Court Determine Custody?

When your marriage ends in divorce and there are minor children still in the home, one of the challenges you’ll face is determining custody and visitation. As a parent, you want quality time with your children, so that you can have a meaningful relationship with them and actively participate in their growth and development. But you also want what’s best for them.

As parents, you can always work out the details of custody and visitation. But even when the parties agree, the court will review the arrangement to ensure that it’s in the best interests of the child and that there has been no coercion, intimidation, or undue influence.

If you can’t agree on the terms of custody, the court will hold a hearing and make the determination for you. The prevailing standard guiding the court’s decision will be the best interests of the children. When making its decision, the court will rule on both physical and legal custody. What is the difference between these two concepts? What additional factors will the court consider? What can you reasonably expect?

What Is Physical Custody?

Physical custody refers to the actual domicile or residence of the child, i.e., where the child will actually live and call home. In the traditional custody arrangement, the parent with primary custody is referred to as the “custodial” parent. The other parent typically gets “visitation,” usually every other weekend, alternating holidays, and often for some period during summer vacation.

Courts used to observe what is known as the “tender years” doctrine or the “maternal preference” when determining physical custody. Under that approach, a mother is held to be biologically more capable of providing a nurturing environment, and therefore, by default, it is in the child’s best interests to grant physical custody to the mother, particularly for younger children.

That principle has been successfully challenged in states across the country over the past half century, even more so in the past decade, as many state legislatures have passed laws encouraging more equality in physical custody arrangements. Accordingly, it’s now more common for courts to grant joint physical custody, with the child spending alternating weeks with each parent or under a similar arrangement.

Regardless of the allocation of time with each parent, courts always seek to promote situations where the child has meaningful time with each parent. In rare situations, where there are concerns about the safety of the child, a court may require supervised visitation.

What Is Legal Custody?

Legal custody refers to a parent’s right to participate in decisions affecting the health and welfare of the child, such as the child’s medical care, education, religious training, and extracurricular activities. The preference among courts across the country is to grant joint legal custody, so that both parents have a say in their child’s upbringing.

What Factors Does the Court Consider When Making a Custody Determination?

Though the particular criteria for granting custody vary from state to state, the overriding concern is always the “best interests of the child.” Factors used to determine the best interests include the following:

• Mental and physical health of each parent
• Relationship the child had with each parent before the divorce
• Age of the children—the younger the child, the more inclined the court will be to maintain as much continuity as possible with regard to the child’s living arrangements
• Ability of each parent to meet the child’s physical and emotional needs
• Impact on the child of any proposed custody arrangement, including changes in home, school, and community environments
• Evidence of domestic violence, abuse, or illegal activity by either parent
• Living accommodations that each parent can provide, e.g., whether the child will have their own room
• Wishes of the child, if the child has reached a certain age—typically 12 years