Physical Custody 13

There are two types of custody in a divorce, paternity action or post-judgment litigation – legal custody and physical custody (also known as residential custody or parenting time in certain jurisdictions). Both legal and physical custody can be awarded to one or both parents.

Legal custody is all about decision-making for the child – and who has the right to make important decisions for the child. Here, we’re talking about health, education, religion and other matters of similar importance.

Physical custody involves where the child will live and which parent will be responsible for his or her daily care. If a child lives with only one parent the majority of the time, that parent has sole physical custody or primary physical custody and is said to be the custodial parent. The other parent is said to be the non-custodial parent, and may have visitation rights with the child.

Some jurisdictions no longer designate one parent as “primary” or “sole” custodian. Rather, the court will lay out a specific schedule of custody without need for labels. The label doesn’t have much relevance for anyone but a handful of third-parties (including the government for income tax purposes).

If a child lives with both parents an equal or almost-equal amount of time, the parents generally share joint or shared physical custody.

In a joint physical custody situation, the court orders a schedule, often called a “parenting plan“, which outlines where and with whom the child resides on any given day. Both parents are considered “custodial parents” under the law.

As noted above, the parenting plan does not necessarily have to be 50/50 in order to be considered joint physical custody. They should generally result in substantially equal parenting time – or, at least, significant periods of physical custody.

A parent who has “physical custody” of a child has the right (and obligation) to provide day-to-day care for the child and make day-to-day decisions for the child during a period of physical custody. These decisions might include what the child will wear, eat or do for fun on a particular day.

Family law courts determine custody (both physical and legal) based upon the best interests of the child. Most courts presume that both parents are fit to make day-to-day decisions for the child (until presented with evidence to the contrary) and will endeavor to give each parent meaningful time with the child.

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Discussion

  • Juanita

    Hello! I am the proud mother of a 6 and 3 year old boys. Both parents were awarded joint physical custody of the children. Their father has primary custody of both boys while older son is in school. I have visitations the weekends. When older son is on summer and winter break they are to live with me and with visit father on the weekends. My questions is, ” Can Father enroll child in summer school without my knowledge? Not giving me court ordered custody over the first month of summer break.

    • Me

      My son and his ex-wife has 50-50 custody and residential custody to his ex-wife my son has been taking care of his daughter for the last two years the daughter has been living with him but she has residential custody she moved to another and now she wants to bring her daughter to the state that she’s in my son did the paperwork to get full custody does he have a chance my son has all records doctor visits and daycare and school records

  • Brandon

    My wife & I are separated but did not get legal separation
    papers as we live in NC & no custody papers for our
    Daughter. My wife has been going out of state w/our daughter
    W/out telling me, I find out thru friends and now 2day was
    The start of my 3days w/her this week & my wife went to
    Ohio w/our daughter &says she is never coming back.
    What can I do legally.

  • Jessie

    My ex-husband and I share joint custody of our two boys, we live in different school districts. Can the boys go to either school. I want them to go to the school district my ex lives for day care reasons – they are watched by their grandparents and it would be easier for them to get on and off the bus at their house. My ex’s legal address is his parents house because he is in the Army and moves around a lot.

    • christine

      i am college student with joint custody i am being taken to court by the father because he claims i failed to tell him, yet he sends me child support papers to my college. I have been in and out of court with him since joint custody granted can i now file for some kind of hassament?

  • jamie

    If you have a child that has been granted joint custody but both parties/parents are neglecting that child, how can a family member obtain custody?”

  • john

    I’m the birth father and signed the birth certificate. My son was placed with me from birth because the mother is on drugs. What rights do i have of the child legally and can i leave the state with my child for a job or to make a better life.

  • josh

    I’m finding out later this week if I am the father of a 4month old girl. I was with the mom the entire pregnancy. I was first to hold her. I took the mother to all her appointments before and after she was pregnant. All while not knowing if I was the father. I’m one of 3 possible dads. I have done everything for this mother and the child and I told her if she is mine I’d like joint custody and be able to have my child for every other week. She freaked out and said no there’s no way it would happen. She. Don’t have a car a job and they smoke inside their home and I don’t see how she’s in a situation to tell me no. I have a car, steady income and a clean safe living environment that beats hers all day every day. If she is mine what do I do to make sure I get her every other week?

  • Stacey

    Test comment

  • Nancey Jane anThomas

    Share joint custody (never married) thomas gets married then leaves the country, does physical custody then go to the natural mother? He never disclosed his where about nor did he file with friend of the court. Step mother has kept child and put a block on any medical information changed doctors. Has lied to about him leaving. What right does the child real mother have now (5 month later)

  • emily reed

    my 12 yr old daughter lives with me but goes to her dads on wed nights and every other weekend. we currently are living about 15 mins away from each other. I am wanting to move 2 hours away and he told me I could not move with her. all t says in the paperwork we have is that the child shall remain in the school district that the respondent(which is me) currently resides in. so does anyone know if I can move or not?

  • My parental rights whee terminated four years ago. My son and I went sixteen longest months of my life without seeing one another. Then he sowed up at my parents house one day, what a happy day/ Anyway my son keeps running away from foster homes and group home to be with me. I want to be with him allso. The guardian lien lied to my boy and told him I volunteered my rights. which was a big lie I fought as hard as I could for almost three years. THEY CHANGED case workers on us and the new one automatically stared the petition to terminate. Then my lawyer that was familiar with our case just up and asked the judge if she could withdraw and he let her i had case worker that were at my trial were defending me saying I had good parenting skills. Ny the way the judge terminated my rights for violating a no contact order against my oldest son. I am 80^ deaf I requested a translator in court and the Judge and Lawyer refused to accommodate me. with a interpreter. so I did understand what I was suppose to do. Now my son is is sicteen he runs away to be with me now he has been here almost six months / the police picked him up yesterday as we were taking a walk. the next thing we new the street was filled with cop cars, like a runaway kid is all they got to do. now he is in the detention center and we can not visit nothing we are both so sad I have to go threw this to many times. I had to work today I kept cring I had to leave early. I want my rights back or at least get custody of him. Please help us.

  • Roxanne

    My 3 yr old niece is in temporary psychically cust of her 87 and 90 year old grandparents. But they do not have her. She is too much for them and their ex son in law who is no relation to my niece has her living with him. Is this against the law?