- Legal custody
- Joint legal custody
- Sole legal custody
- Physical custody
- Joint physical custody
- Other important custody terms
If you're a parent of minor children and getting divorced, the issue of child custody has likely crossed your mind. As you negotiate your divorce settlement with your soon-to-be ex, issues like who gets legal custody and physical custody of the children will be on the table. Depending on your situation, you might be feeling quite stressed about the custody arrangements for your children – especially if you aren't sure what's going to happen.
In this article, we explore the definitions of and differences* between different types of child custody: legal custody, joint legal custody, sole legal custody, physical custody, and joint physical custody. These are terms you'll want to thoroughly understand as you and your spouse figure out the details of your custody agreement. We also discuss possible visitation scenarios.
*Note that the term "custody" is used in many, but not all, states.
Legal custody
Parents with legal custody have the right to make important decisions concerning a child’s health, welfare, and education. This includes where the child attends school and from whom they receive medical care. When parents are married, they typically share this decision-making power.
Joint legal custody
Often, divorcing parents choose to continue joint decision-making as co-parents after divorce. This is known as joint legal custody.
Parents do not have to agree on all child-rearing issues in joint legal custody situations; each maintains a right to make decisions for the kids. To avoid further litigation, however, it's best for parents to decide on issues together. This is especially true for important decisions like where the child will attend school.
Joint legal custody is a common divorce outcome. When joint custody is not awarded, it may be for one or more of these reasons:
- The parents cannot make any decisions concerning their children together.
- A parent is deemed unfit due to abuse, neglect, domestic violence, or other incapacities, such as substance use.
- It is in the best interests of the child for a sole parent to retain legal custody. (If a parent has sole legal custody, they make all decisions about the child's health, welfare, and education.)
In any custody case, the court always views the best interests of the child as the paramount concern.
Sole legal custody
We mentioned “further litigation” above, which can happen if parents disagree on multiple child-rearing issues. If a custody case goes before a judge, there is a chance that the judge will decide to award sole legal custody to one parent. This arrangement cuts out one of the parents completely when it comes to making important decisions for the child. (Note: This doesn’t always happen when parents cannot agree. There is also a chance the court might name one parent as the “decision-maker” or “tie-breaker” in joint legal custody disputes.)
Sole legal custody might also be awarded to one parent if the other is unable or unwilling to fulfill parental duties.
Physical custody
Physical custody reflects where the child will live after the divorce. A parent with physical custody has the right to have the child physically present in their home. If a child lives primarily with one parent, that parent is the custodial parent. The parent without physical custody, known as the non-custodial parent, typically has visitation rights.
The visitation arrangement varies from one family to the next. For example, some non-custodial parents might spend three evenings per week with their child. Others might spend every other weekend with them. The term “visitation” refers to the time a non-custodial parent spends with their child.
Joint physical custody
Parents with joint physical custody share the right to provide physical care for the children. Joint physical custody does not always mean a 50/50 schedule. However, it does mean both parents have the right to provide physical care. Parents could have joint physical custody and a timeshare of 20/80, 30/70, 40/60, or 50/50. An example of a 50/50 timeshare would be week-to-week custody, where the kids live in one parent’s home one week and the other parent's home the next.
Physical custody is determined based on the child's best interests. Courts do not usually award joint physical custody if there is evidence of parental abuse or neglect.
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Other important terms in child custody
Visitation
Visitation refers to the time a non-custodial parent spends with their child. It is, once again, based on the best interest of the child, and it varies based on the facts and circumstances of the custody case. Usually, there is a preset visitation schedule to prevent confusion and promote fairness when it comes to things like holidays and birthdays.
Reasonable visitation
Sometimes, a child custody order mandates "reasonable” visitation without mention of specific periods of time or days of the week. In these cases, the parents must devise a visitation schedule between themselves. This requires communication and compromise. As such, reasonable visitation is not often used in contested custody cases where parents aren't getting along.
Supervised visitation and no visitation
Supervised visitation or no visitation may be ordered if a parent's ability to adequately care for a child is questioned. This is done when evidence of substance abuse, neglect, domestic violence, or other child abuse exists. Supervised visits may occur in the presence of a governmental agency or a third party.
Custody orders should be specific enough to be followed without question but flexible enough that they will last a long time. If you'd like more information, Hello Divorce offers a wealth of informative resources about custody and other divorce-related situations.
Frequently Asked Questions About Legal and Physical Custody
What is legal custody?
Legal custody is the right to make important decisions for your child, including medical care, education, religion, and overall well-being.
What is physical custody?
Physical custody determines where your child lives and who provides day-to-day care. It may be shared between parents or primarily with one parent.
Can parents share both legal and physical custody?
Yes. Courts often award joint legal custody so both parents remain involved in big decisions. Physical custody may also be shared, but sometimes one parent has primary custody.
How does joint custody differ from sole custody?
Joint custody means both parents share responsibilities, either in decision-making, time with the child, or both. Sole custody gives one parent the primary authority, though the other may still have visitation.
What factors do courts consider when deciding custody?
Courts prioritize the child’s best interests—stability, safety, health, parental involvement, and each parent’s ability to meet the child’s needs.
Can custody arrangements be changed later?
Yes. Custody orders can be modified if there are major changes, such as a parent relocating, new needs for the child, or issues with a parent’s ability to care for the child.
How to Understand and Navigate Legal vs. Physical Custody
Learn the definitions
Legal custody relates to decision-making; physical custody relates to the child’s residence and daily care.
Review your parenting goals
Consider how involved you want to be in both big decisions and everyday routines, and how that best supports your child.
Consider joint vs. sole options
Decide whether joint custody (shared responsibility) or sole custody (one parent has primary authority) works best for your family.
Draft a proposed parenting plan
Outline schedules, who makes decisions, and how parents will communicate about the child’s needs.
Work with mediation or legal support if needed
If you and your co-parent disagree, mediation or legal help can guide you to a child-focused plan.
Finalize through the court
File your custody agreement or plan with the court so it becomes legally enforceable and provides structure for both parents.
Free download: Shared Custody and Visitation Checklist
