Talk to Your Kids About Divorce

What’s the Difference between “Legal” and “Physical” Custody?

Unless you live in a bunker, you probably remember the shocking split of Brangelina, aka Brad Pitt, and Angelina Jolie. You might also have heard that Angelina petitioned the court to allow Brad only to have joint legal custody over their six shared children, with herself having the exclusive right to physical custody. So, what on earth does that mean?

Legal custody is the right to make the major decisions concerning a child’s health, welfare, and education, like where a child goes to school, and whether a child should receive medical care (or even who the doctor should be).

Angelina petitioned for joint legal custody, meaning that she wants both parents to share in these rights. This does not necessarily mean that the parents have to agree — the parents have the independent rights to make decisions for the children. However, to avoid further litigation, it is best for parents to communicate and work toward decisions together, especially on things like where the child will go to school.

Joint legal custody is common in California. In fact, it is usually awarded unless the parents cannot make any decisions concerning their children together, a parent is deemed ‘unfit’ due to abuse, neglect, or other incapacities (such as substance use), or if it would be in the child’s best interests for a sole parent to retain legal custody.

It is important to note that throughout any custody case, a court will always keep the child’s best interest as the paramount concern before making any determinations. If a parent has sole legal custody, the parent can make all decisions about the child’s health, welfare, and education without seeking any input from the other parent.

Physical custody means where the child will live after the divorce. The parent with this kind of custody has the right to have the child physically present in the house. If the child lives primarily with one parent, then that parent will be the custodial parent. The parent without physical custody typically has visitation rights — which is what Angelina requested in her petition for Brad. If Angelina had requested joint physical custody, instead of sole, she would have wanted Brad to have a shared right to provide physical care for the children.

Joint physical custody does not necessarily mean a 50/50 schedule so much as a right for both parents to provide physical care. Parents can have joint physical custody and have a timeshare that is 20/80, 30/70, or 40/60. However, an example of a 50/50 timeshare would be week-to-week custody, where the children live in one parent’s home one week and switch to the other the next.

Physical custody is determined based on the best interest of the child (which is very case-specific to each family), and courts will usually not reward joint physical custody if there is evidence of abuse or neglect on the part of the parent against the child.

Visitation means how often parents will share time with the children. Visitation is once again based on the best interest of the children and can vary widely based on the facts and circumstances of each case. Usually, there is visitation according to a pre-set schedule, in order to prevent confusion and conflicts, and ensure fairness when it comes to things like holidays and birthdays.

Sometimes the order will simply mandate “reasonable” visitation, without any specific days of the week. The parents will have to work out a good schedule between them, which requires good communication and compromise (and so is not very often employed in contested custody cases).

Finally, supervised or no visitation can be ordered in cases where there is some question of the ability of the parent to adequately care for the child while in his or her care. The visits, if supervised, can be supervised by a government agency or a third party that is agreeable to both (or even appointed by the court). This is done in cases where there is evidence of substance abuse, neglect, or other abuse to the child.

Regardless, even for couples like Brad and Angelina, custody orders should be specific enough to be followed without question, but flexible enough so that they will last for a long period of time. Courts prefer stability over modification on these orders, and given the youth of the children, the order will need to account for a fairly long period of time, and large age gaps between the children, in order to foster an environment of trust and stability.

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