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Legal Custody versus Physical Custody


Legal Custody versus Physical Custody


There is a large difference between legal custody of a child and physical custody. That difference is based on the right to make the major decisions affecting the child. The parent with legal custody has the right to make those decisions.


Legal Custody


The parent who has legal custody is basically the parent who gets to make the decisions involving the health and welfare of the child. These include the right to decide what school the child will attend, give consent to medical procedures, and determine the religious training of the child. These rights are limited by the financial resources of the parents. A parent with legal custody cannot demand the other parent pay for or contribute to the cost of an expensive private school, where the other parent did not agree and cannot afford it.


Physical Custody


Physical custody means the time the child is in the physical care of the parent. The typical case is where one parent has the legal and physical custody of the child and the other parent has visitation. Another typical case is where the parents share physical custody, but the court grants legal custody to just one parent. Shared physical custody is when both parents spend significant amounts of time with the child, not just a few week ends and a week during the summer. An award of shared physical custody but sole legal custody is usually done when the parents cannot agree on the important decisions affecting the child, and it is better if one person is made responsible.


While legal custody carries the right to make big decisions, a parent who currently has the child in his or her physical custody, such as periods of visitation, may make the day-to-day decisions that affect the child. The parent can decide on activities such as going to the zoo or doing homework, taking the child to a birthday party or to soccer practice. While the parent with legal custody will decide a course of treatment for a child with special needs, the parent with physical custody can certainly provide for emergency care or take the child to a doctor for a routine visit. Unless a court order or custody agreement provides otherwise, the parent with visitation or custody can take the child on vacations across the state, across the nation, even across the ocean. It should be noted, however, that only the parent with legal custody has the right to obtain a passport. The parent with physical custody will need to get the passport from the parent with legal custody, in effect making sure that the parent with legal custody gives consent to overseas travel.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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