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Child Custody 101: Legal Custody vs. Physical Custody

Courtney Green • Oct 08, 2020

Whether you are considering divorce or in the middle of a contentious custody case, it is important to understand the different types of child custody so that you can create a parenting plan that works best for you and your family. 

Legal Custody vs. Physical Custody – What’s the Difference?

             Legal custody refers to the rights and the obligation to make decisions about a child.  The types of decisions can include choices such as: education, religious upbringing, non-emergency medical decisions or procedures, extracurricular activities, childcare provider, choice of pediatrician or counselor, purchase or operation of a motor vehicle, contraception and sex education, and even decisions relating to actual or potential litigation on behalf of the children.  

            Legal custody decisions are major decisions affecting the health, welfare, and education of the child.  Day-to-day decision making, such as what to eat for lunch, which emergency room to bring the child to if they break their foot, or what type of toothpaste to use is up to the parent exercising parenting time at that time.

             Physical custody refers to which parent the child is physically with at any given time, specifically, where the child is residing that night and which parent is caring for them.  This type of custody is what most people think of when they hear “parenting time,” “parenting schedule,” or “custody arrangement.”  It is the custody schedule that you are negotiating.  It is important to take into account school, work, and travel schedules when deciding on physical custody. 

Sole Custody vs. Joint Custody – What’s the Difference?

          Now that you know the difference between legal custody and physical custody, we can talk about the four types of physical custody and legal custody arrangements you can request, and what that means for you and your child.  Within legal custody and physical custody, parents either have sole legal or joint legal, and sole physical or joint physical custody.  

Joint legal custody is the most common type of legal custody.  It refers to both parents making decisions together for the best interest of the child.  Of course, as in any family, there are some decisions where parents may not see eye to eye.  Opening the lines of communication can be difficult for a family going through a period of transition; however, it is important, now more than ever, for parents to listen, empathize, and compromise with one another when it comes to making decisions that will affect their children for years to come.

Sole legal custody refers to one parent having the sole authority to make decisions regarding health, education, and welfare on behalf of the child.  This is not typical of most custody situations; however, it is not altogether rare. There are some situations when parents may agree, or a judge may order, that one parent should have sole legal custody of the child. Such circumstances that may warrant sole legal custody include, but are not limited to: one parent living a great distance away, there is a significant history of abuse or neglect, or one parent significant and untreated substance abuse or mental health issues.  

Joint physical custody, as with joint legal custody, is the most common form of physical custody.  In this scenario, the parents share equal parenting time of the child, or close to equal.  A joint physical custody schedule can look very different for different people.  There is no cookie-cutter way to share parenting time that can be applied to every family.  In negotiating a parenting plan, be sure to keep in mind work and school schedules.  Some schedules may look great on paper but remember these schedules have to work for you and your family in your every day lives. 

Sole physical custody refers to one parent being given all or almost all of the physical time with the child.  It is uncommon for one parent to be given sole physical custody, but it is an option when one parent has significant impairments that affect their ability and willingness to actively perform their functions as a parent.  Such impairments may include, but are not limited to: untreated substance or alcohol abuse, untreated mental illness, or abusive or neglectful behaviors. 

Physical Custody vs. Visitation Rights – What’s the Difference?
 
           If one parent is granted sole physical custody due to the other parent’s inability to parent safely or effectively, it does not mean that the other parent cannot see their child at all.  In some instances, for a myriad of reasons, a parent may be awarded sole physical custody and the other parent given visitation rights.  The parent with sole physical custody will have custody of the child most of the time and the other parent will have visitation time with the child, a shorter period of time that may include some overnight visits. 

          There are circumstances that may require a parent’s visitation time to be supervised for the safety of the child. Most courts offer supervised visitation at the courthouse or court-approved centers, where a court-appointed/approved supervisor oversees the visit. Other times a court may allow a family member to supervise the visits with the parent. There are also private supervisors that can be involved, hourly rates ranging from of $50-$75.  

Child custody is an overwhelming and emotional decision.  Consulting with experienced attorneys who are knowledgeable and understanding can help ease your mind and the process of designing a parenting plan that works for you and your family.  Contact us today to consult about your custody options. 

02 Jan, 2024
Ready to start anew but feeling lost? Look no further than the Second Saturday Divorce Workshop, hosted by The Center for Family Law. This workshop will offer tools and resources for every step of the process, providing guidance on important topics such as child custody, support, and property division. Register for second Saturday 2024 now!
17 Nov, 2023
Once again, The Center for Family Law has been ranked as a 2024 "Best Law Firm" by U.S. News & World Reports in the area of family law in St. Louis.
By Allison Gerli 21 Aug, 2023
Navigating family law can be a complex and daunting process. That's why the recent Missouri Bar Family Law Conference brought together Missouri attorneys in the field to share insights and best practices. Attorneys at The Center for Family Law were among the presenters and in attendance at the 23rd annual conference held in Branson, Missouri. Their presentations focused on managing client expectations, initial consultation, drafting documents, case management, and grandparent visitation, third-party custody, and guardianships. Initial Consultation & Managing Client Expectations To ensure a positive attorney-client relationship, it is crucial to establish clear expectations from the very beginning. This was the focus of Allison Gerli's presentation at the conference. Allison co-presented with Andrea Pate, a family law attorney and partner at The Law Office of the Ozarks. It is crucial for attorneys to establish a solid foundation of trust and communication with their clients from day one, as this sets the tone for the entire legal process. Allison stressed the significance of active listening and open dialogue during these initial meetings, allowing clients to express their concerns and goals. Allison's presentation also highlighted the importance of transparency in managing client expectations. Attorneys should provide honest assessments of their clients' cases, outlining both the strengths and potential challenges they may face. By setting realistic expectations from the outset, attorneys can help clients navigate the legal process with confidence and a clear understanding of what lies ahead. The presentation then shifted to the importance of talking to clients about process options. Often practitioners focus on the substance and overlook the process. Clients have options on how to resolve their disputes and this should be presented and supported by practitioners. The Center for Family Law prides itself on process options and educating clients on their options, whether that by an uncontested "kitchen table" style divorce, collaborative divorce process, mediation, or a semi-litigated case resolved through cooperative attorneys sitting down to work through issues. Case Management Case management is critical to providing quality services to family law clients. Ann Bauer's presentation at the conference provided valuable insights and best practices in this area. Ann co-presented with Kristen Siegel, a family law attorney and partner at Siegal & Irwin, LLC based in Lee’s Summit, Missouri. Kristin covered the importance of carefully drafting court pleadings. In terms of case management, Ann highlighted the importance of document organization, keeping track of deadlines, and timely communication with clients. Attorneys must keep track of deadlines, court appearances, and client meetings to ensure cases progress smoothly. Clear and frequent communication with clients is crucial. Clients want to know what is going on, and not to be left wondering. It is important to provide updates, address concerns, and gather necessary information for the client’s case. Ann also discussed the significance of effective document management as a part of case management. Maintaining well-organized and easily accessible files can streamline the legal process and ensure important documents and information are readily available. F.amily law cases are often document-heavy. Keeping documents organized in a systematic way can enable the attorney to prepare for settlement and trial Grandparent Visitation, Third-Party Custody, and Guardianships Hallie Van Duren delivered a two-part presentation on the complex legal issues surrounding grandparent visitation rights, third-party custody, and guardianships. Hallie co-presented with attorney Kristen Sparks, partner at Garnholz Sparks. Typically, guardianship cases involve neglect, abuse, or the inability of the biological parents to provide a suitable environment for a child. A guardian who is appointed by the Court steps into the role of a parent in all respects. A third-party custody action can similarly result in a third-party custodian stepping completely into the role of a parent, but, unlike in guardianship cases, third-party custody can in some circumstances result in a shared custody arrangement between biological parents and non-parents. Grandparent visitation involves much more limited court-ordered contact between a grandparent and a child or children while preserving the parental right to custody. Hallie outlined the legal standards and procedures for a non-parent to seek custody or visitation of a child in each of these types of cases, emphasizing the paramount concern of establishing and preserving the child's best interests. By exploring statutes, caselaw, and examples, Hallie’s presentation analyzed which type of action would be most appropriate in different circumstances. Over the course of her two-hour presentation, Hallie examined the complex legal balance of preserving relationships between children and grandparents or other third parties while respecting parental rights. Hallie offered practical guidance for Missouri attorneys in advising clients who are either seeking to establish grandparent visitation rights, guardianship, or third-party-custody or defend against such actions.
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