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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