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.
Physical custody denotes where the child will reside, when and with whom. Legal custody is the right of parents to make the major decisions affecting a child’s life like education, health care and religious practices.
Family law courts determine custody (both physical and legal) based upon the best interests of the child. Most courts will presume that both parents are fit to make day-to-day decisions for the child and will try to craft a parenting plan to allow each parent to have meaningful time with the child.
Some jurisdictions no longer nominate one parent as “primary” or “sole” custodian, preferring instead to map out the dates and times of custodial periods without any particular label assigned to the time awarded to either parent. Other jurisdictions still name one parent the “primary” or “sole” residential or physical custodian. This label is often more for use by third-parties than for any other reason. For example, the designation may be relevant for income tax purposes.
While shared or joint physical custody of children after a divorce has become more and more common over the last ten years or so, most divorced or separated parents will have one parent with physical custody and the other with visitation. On occasion, the court will place limitations on visitation in terms of time, location and/or supervision if there are concerns for the child’s mental and/or physical welfare. In certain extreme instances, visitation may be denied. (In any of these instances, you may hear the primary residential custodian referred to as having “sole physical custody.”)
Note that sole legal custody is a separate custody concept, which grants one parent the authority to make decisions for the child with respect to school, health and other life-impacting matters without having to consult or agree with the other parent on the issue. Sole legal custody is not the typical order in custody matters and generally requires a lack of fitness on the part of one parent to make appropriate decisions and/or the inability of the child’s parents to consult without high conflict. Joint legal custody is the more typical order.