When dealing with family matters such as divorce or paternity cases, you will find yourself explaining to your client the differences between legal and physical custody. It is very stressful for the parties to decide where the child will be living until he or she reaches the legal age to make decision on his/her own. When fighting over custody parents assume that whoever has physical custody of the child for more then 50% he/she can make all the decisions concerning the child’s well being. Unfortunately this is wrong, having physical custody doesn’t mean that you have the right make any decisions without consulting the non-custodial parent. Here is when legal custody comes into place, unless the court order says otherwise, in the majority of the cases both parents share joint legal custody, and one of them has more then 50% of physical custody unless the court order says otherwise. Here is how it works:
PHYSICAL CUSTODY: it means where the child is going to be living at and with whom for the majority of the time; it could be Mom or Dad. If Mom has physical custody of the minor that means that Dad will be visiting with the child for X% of time, according to the Court order made by a Judge or by a mediator, or vise versa. Now days, is more common to see Dads holding the physical custody of the child and Moms will do the visitation accordingly to the Court order. We should remember that not because you are the “mom” that means that automatically you get to keep the physical custody of the child and dad get to visit. In order to have physical custody of the child, you must prove to the Court that you can care and provide for the child while under your care, this means that the child needs his/her own room, bedroom and someone to care for him/her at all times. You could be a working Mom or Dad but you must have someone to baby-sit him/her while you are not available.
In the other hand, legal custody does not require for you to have a separate bed and bedroom for the child, you just need to have the ability to communicate and make decisions in the best interest of the child.
LEGAL CUSTODY: it means who if not both parents will be taking and making decision over the child’s well being such as: what school is the child going to attend, who will be his/her primary doctor/pediatrician, what religion is the child going to practice, in case of a medical emergency what treatment is the child going to be receiving, etc. etc. Anything that has to do with legal decision making both parents will have to act and joint this responsibility.
It is very confusing when parents don’t know the difference between legal and physical custody, and the role these two plays. While the case is moving along, you could have temporary orders regarding legal and physical custody, and is not until the trial or in a settlement agreement that you will have a final order that will give you 50-50 or more custodial time. Any decision that a Judge or you will make with regards to the physical custody, must be done in the best interest of the child.
