What is Legal and Physical Custody?

Parents of minor children who have separated need to understand the differences between legal and physical custody with respect to the health, education, and welfare of the children. Parental responsibilities are commonly shared by parents. Sometimes, albeit rarely, the parents agree—or the court decides—that one parent should be the sole provider and decision-maker for a child. Below, we’ll discuss in detail the different types of legal and physical custody.

Joint Legal Custody and Sole Legal Custody

Legal Custody deals with the rights that parents have to make decisions for the benefit of their minor children. There are two types of legal custody: 1) Sole legal custody and 2) Joint legal custody.

Sole legal custody means that only one of the parents has the right and responsibility to make important decisions about the health, education, and welfare of the children. The parent without legal custody will still have the right to be informed regarding the decisions the parent with sole legal custody makes regarding the children and will have access to all medical, dental and school records of their children.

Joint legal custody means that both parents share in the right to make decisions relating to the health, education, and welfare of a child. Typically, an order for legal custody will specify that each parent must consult and agree upon where a child goes to school, whether a child should receive medical care (except in emergencies), and what extracurricular activities a child can be involved in.

Joint legal custody is frequently ordered by the courts. In rare situations, the court can order sole legal custody to one parent when one parent is found to be unfit to care for the children, the parents are unable to make decisions together and one of the parents is better suited to solely make the decisions, and when it would be in the best interests for one of the parents to have sole legal custody.

Joint Physical Custody and Sole Physical Custody

Physical custody is the time that each parent spends with the children. The courts further define physical custody as either Sole Physical or Joint Physical Custody.

Sole physical custody means that the children live with one parent most of the time and the other parent has designated parenting time. There is no hard rule on what percentage a parent needs to spend with a child to have sole physical custody. For some courts, an 80/20 timeshare may suffice. For others, any time above 60 percent may be considered sole physical custody. Parents with sole physical custody have an advantage over the other parent in the event that the parent with sole physical custody wishes to move the minor children.

Joint physical custody means that both parents spend significant time with their children. There is no black and white rule regarding what timeshare parents need to have joint physical custody. Courts can decide that significant time means anywhere from equal time all the way down to a 80/20 timeshare.