What is legal custody?
Legal custody is distinct from physical custody and is of equal importance to physical custody in a child custody arrangement. While physical custody determines the primary residence of the child, legal custody involves making decisions on behalf of the child that affect their general welfare. This includes decisions regarding a child’s education, health care and transportation; involvement in religious activities; and facilities for child care or after-school care. The rights to make these decisions are defined and agreed upon in the court order. A parent with legal custody may delegate responsibilities for making such decisions, but they will still be vested in that parent. For example , if one parent has legal custody, they may be able to grant the other parent the right to decide regarding health care or non-emergency situations involving education. The parent with legal custody cannot, however, amend the other parent’s child support obligation, the parenting time schedule, or the address of the child without that parent’s consent. Legal custody can be joint or sole. If the parents agree to a joint legal custody arrangement, the court will generally not override this in favor of an award of sole legal custody to one of the parents. Parents should confer and try to come to an agreement regarding legal custody while keeping in mind the best interests of the children.
What is physical custody?
Physical custody relates to where the child will reside on a day-to-day basis and, as such, is complementary to legal custody. Unlike legal custody, however, physical custody is not comprised of two subcategories (joint and sole). Rather, physical custody is simply "sole" or "shared." When parents share physical custody, they have an equal amount of parenting time with the child. On the other hand, sole physical custody (also called primary physical custody) refers to a single custodian having the majority of parenting time with the child.
While the terms "sole physical custody" and "shared physical custody" are commonly used in Pennsylvania, the statute itself does not use them. Instead, the statute refers to sole physical custody as "primary physical custody" and shared physical custody as "shared custody." The statute further defines these terms as follows:
"Primary physical custody" means that the party awarded custody shall have exclusive right to determine the child’s primary residence. 15 Pa.C.S. § 5322.
"Shared custody" means that the parties award shared physical custody as each having at least a minimum (greater than de minimis) amount of time with the child. 15 Pa.C.S. § 5322.
The difference between legal and physical custody
When adjudicating a divorce or other family law basis, addressing child-related issues is often the most difficult part for a judge, whether it is with respect to parents or among other family members. As in other circumstances, the law establishes a set of standards to help inform the judges’ decisions and to provide guidance as to what is reasonable and appropriate in the circumstances. In matters involving the custody of "children," parents will typically be asked to address both legal custody and physical custody.
One of the primary differences between legal and physical custody is that legal custody has been construed to address the legal authority of a parent, as opposed to the actual physical presence of a child, as a means to make decisions regarding the child. In other words, "legal" custodians can make decisions relating to the children, while "physical" custodians actually are physically caring for the children on a day-to-day basis. Personality issues can be difficult to work out, lawyers will often recommend working out "legal custody" and "physical custody" on their own, and submitting the information to the court. In other words, legal custody is an area where you are more likely to agree with your partner.
Additionally, legal custody also cloaks the "parent" with access to, interpretation of and the ability to provide personal information about the child to the other "physical" parent. While courts will typically encourage parents to work together and cooperate and to minimize conflict in the presence of children, the law affords legal rights to the "legal" custodian with respect to the children, and there are a multitude of laws that afford "physical" custodians with notice of what is happening with the children both in and outside of the house, including but not limited to school, medical or dental facilities.
The definitions are often used for custody. You might have sole child custody, or share joint custody. You will also hear full custody as another way to express sole custody. One parent or both parents can have legal or physical custody.
Joint custody versus sole custody: what do they mean?
Perhaps the biggest question prospective clients have concerns whether they will have joint or sole custody of their kids after a divorce. While many people assume – wrongly – that if they have joint legal custody, they will automatically have joint physical custody, that simply isn’t the case.
For married parents at the time their divorce is filed, Virginia law presumes that they will share joint legal and joint physical custody concerning their children. In the case of unmarried parents, neither parent will have custody until each submits his or her proposed custody visitation schedule to the court.
On occasion, a parent may have sole custody from the beginning of the case, but that is exceedingly rare. Usually, the parent who files the first motion for custody (as well as the parent who requests the judge enter a temporary order) gets temporary legal and physical custody. Sometimes a judge grants temporary custody even without a request, although that is also rare.
Virginia law requires judges to apply the "best interest of the child" standard to custody and visitation cases, with a preference in favor of joint legal and joint physical custody. Again, contrary to popular belief, joint legal and joint physical custody do not normally go hand-in-hand. Under Virginia law, each factor in the Best Interest of the Child Standard is equally weighted. Judges helpfully provide precedent in their rulings, listing the following factors they consider as part of the "best interest of the child" analysis:
Not surprisingly, parents should be on their best behavior for a prolonged period of time before and during any custody lawsuit. No drinking, no drugs, no bad-mouthing the other parent, no introducing your new boyfriend/girlfriend to the children one second after you broke up with your former love who was also your spouse.
The biggest difference between joint legal and sole legal custody is control. Sole legal custody means that parent has the right to make decisions for the kids, while joint legal custody gives each parent the ability to weigh-in with their opinions on parenting.
While judges oftentimes can’t spend enough time with very young children, most courts still prefer joint legal custody when the children are too young to provide any input. A parent who lives very far away from the children (perhaps overseas in the military or for work) may be granted sole legal custody, but joint legal custody remains the legal presumption in Virginia.
In some rare circumstances, judges deny parents joint legal custody. Those cases normally involve either extreme circumstances or entrenched, hostile parents. On the rare occasions when I make a request for sole legal custody, I present evidence to the judge about how the other parent will not cooperate. A parent who refuses to allow the other parent to have contact with his or her family members, such as grandparents, will make it extremely difficult to obtain an award of joint legal custody.
Then there’s physical custody, which also diverges into joint custody and sole custody. Non-custodial parents (the ones who don’t have physical custody) have visitation. Custodial parents are the ones with physical custody.
Some experts believe the amount of time a parent spends with the child is the sole criterion used by judges when determining physical custody. Parents who cannot spend regular and significant time with their children do not gain the same rights and responsibilities as parents who can get the child more often.
While the various schedules blend together, here are the common scenarios for physical custody:
Divorce courts do not award full physical custody to both parents. When the parties were married, perhaps they had joint physical custody, allowing for an almost equal amount of parenting time with the child. Now, that arrangement needs to be redefined and controlled by a court order. If parents reach an agreement on their own, they may submit that to the court and ask for the judge to sign it as a final order, regardless of how the judge would rule if they let him/her decide. It’s important that all parents know their rights and responsibilities from the beginning. Some parents achieve goals that others thought impossible. Parents must remain committed to the best interest of our common humanity, childhood, and the individual needs of their children.
How custody arrangements affect everyone
When considering or negotiating parenting plans, it is important to realize that a change in custody can have a major impact on all family members involved. It is not as simple as one parent getting the children for holidays, one taking them for school breaks and perhaps sharing equally for summer. There are emotional, financial and practical aspects for parents and children to consider. If parents have "60/40" physical custody, it is important to note who has majority parenting time. Will the "home base" parent be the Mother or Father? Depending on age, children adjust differently to the main care provider. Some will have more of a need for Mommy, the home base provider, while some do not. The main care provider may have more of the financial responsibility, however, the other parent may pay more for health insurance, child care or education. All of these factors need to be reviewed when negotiating parenting schedules . These facts will help determine which parent will be the primary custodial parent. Once the main care provider is determined, you need to look at the impact of the divorce and new parenting plan on the children. Will their social life be impacted? Depending on the age, some children need to know that their friends will be around after the divorce. Other children may need to participate in counseling and activities such as martial arts, kick box, yoga etc. to deal with the loss of the "normal" family unit. For parents, the impact of the divorce and custody arrangement can also be significant. Many times, parents become isolated from friends who do not understand their situation or have had similar experiences. They may need to attend support groups to help them understand the new family dynamic and how to cope with holidays and parenting time in the future.
How courts determine custody
Determining legal and physical custody can be a difficult for courts as they try to decide what is in the best interest of the children. When deciding who should have legal or physical custody, courts will examine a variety of factors including the parents’ parenting ability and background, the past relationship with the children, and the parents’ respective ability to provide a stable home. Courts may also require that a third party, such as a psychologist, conduct an evaluation to assist in determining custody. In Illinois, the custodial parent will likely need to perform the evaluations themselves if they want it submitted into evidence as opposed to requesting the other parent to have an evaluation done. The most important factor that courts will consider is the best interest of the children. Courts often begin by examining the residential status of the children during the marriage. If the children spent more time with one parent, that parent will likely retain primary physical custody. Courts also examine the children’s preference in who they want to live with, though their preference may not be the deciding factor in awarding custody. Courts will take into account each parent’s physical and mental health. These are just a few of the factors that courts will consider before awarding legal and physical custody.
Changing custody arrangements
When it is necessary to have a change in the parenting plan and/or in the physical custody arrangement, it can be done. That is, with a caveat. In order to modify the court approved parenting plan (for parties who are not married to one another) or to modify a court approved custody arrangement (for parties who are married to one another) the requesting party must prove certain things to the court. The procedure is not automatic. A modification requires a change in circumstances and must be in the best interest of the child(ren).
There are many reasons of why a court approved custody arrangement is modified:
When situations or conditions change after the entry of a court order , parents may seek to alter the order for the best interests of the children. However, until both parties agree or a court decides otherwise, the terms of the order remain the same. There are essentially two methods to modify a custody arrangement. Either you and the other parent can discuss and agree to a modification of the existing order, or you can file a motion with the court asking the court to modify the order when an agreement cannot be reached. The Pennsylvania Custody Act, under 23 Pa.C.S. 5328, offers an overview of the factors that the court must consider when establishing or modifying a custody order.