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

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 towards 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 incapacitaties (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 be wanting 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 will be 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.

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