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The Difference Between Legal Custody and Physical Custody

Posted by Ahluwalia Law Professional Corporation | Jun 05, 2017 | 0 Comments

Child custody cases can be confusing, and one of the questions we're often asked is, “What is the difference between legal custody and physical custody?” Here's our explanation.

Both of these terms have to do with the parent's, or legal guardian's, rights regarding their children's care. These child custody issues generally become an issue during a divorce, when new arrangements must be made regarding the children's care. Both of these types of custody must be determined, and they're usually determined separately. We'll explain what each type of custody is, so you can proceed with your divorce knowing the ins and outs of the process.

Sole Legal Custody

When a parent or guardian has sole legal custody, that means they're the one who is allowed to make important decisions for their children. For example, they can decide what school the children attend, where and when the children should get medical care, or whether they should have music lessons, just to name a few common situations. In a sole legal custody situation, only one of the parents can legally make these decisions—they don't have to consult with the other parent.

Sole Physical Custody

When a parent or guardian has sole physical custody, the children live with him or her. Even though the children will live with one of their parents the majority of the time, this doesn't necessarily mean that the other parent can never see the children. Visitation, or “parenting time,” is usually allowed on a scheduled basis.

Joint Legal Custody

In joint legal custody (also called shared legal custody), both parents are allowed to make decisions that impact the children. Usually, judges prefer for legal custody to be joint. California legislature has made this aspect clear in Family Code. However, if one of the parents is deemed unfit (due to abuse, violence, substance abuse, criminal background, etc.), he or she will not get joint custody. In a joint legal custody situation, if the adults are unable to come to an agreement on any major decision, the dispute will be settled in court.

Joint Physical Custody

Joint physical custody, or shared physical custody, means that the children split their time living with each of their parents together as a team. It also means that both of the parents have substantial (though, not necessarily equal) responsibility for the children's day-to-day care. Most judges want to appoint joint physical custody, because this is the best way to ensure that the children get to spend plenty of time with both of their parents. Just like on the legal custody side of things, if a parent is deemed unfit, they won't be allowed to have joint physical custody.

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