Legal Custody v Physical Custody

Legal Custody v Physical Custody

I frequently have parents asking for “50/50” custody.

It is important to distinguish between legal and physical custody.

Legal Custody

Legal custody is decision-making power on the health, education and welfare of the child.  For example, where would the child go to school?  In the event of a medical emergency, who makes the call?  Should the child get braces?  Who has access to the child’s medical and school records?

Legal custody has nothing to do with where the children live.

Most of the time, when people “demand” 50/50 custody, for the benefit of the doubt, I assume they mean legal custody.

Mostly because I don’t envision either parent wants to take a sword, and as proposed by King Solomon, cut the child in half.

Issues that Arise with Joint Legal Custody

If one or both parents are unreasonable, joint legal custody will cause problems.  The most common dispute is over where the child will attend school.

In the cases where one parent is unreasonable, it may benefit someone to have tie-breaking authority.  

Physical Custody

Physical custody is where the child will live.  Because the Courts do not want to disrupt a child in divorce, most often custody is awarded based on status quo.

Sometimes a prospective client will demand 50/50.

When I ask them if they have a “parenting plan” in mind, they will say something like this.

“I work full-time and the other side doesn’t work. So I just want to see the kids whenever I have time.”

If you only want to see the children whenever YOU have time, this is NOT 50/50 physical custody, and even more importantly, this is NOT in the child’s best interests.

Issues that Arise with Joint Physical Custody

Sometimes one parent disgenuously seeks joint custody with no intention of using their time.  Or, they intend to, but don’t.

If you do not use your time, you will lose it.  See How to Lose Custody.

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