Chil Custody

When discussing child custody, it is necessary to differentiate between “legal custody” and “physical custody”.  Legal custody refers to the right and responsibility to make decisions regarding the health, education and welfare of a child, but does not reflect where the child resides.  Physical custody generally addresses where the child lives and how much time the other parent has visitation. 

When discussing legal custody, the court can order "joint legal custody" or “sole legal custody”. Joint legal custody is the most common and refers to custodial situations in which both parents share the right and responsibility to make decisions regarding the child's health, education, and welfare. The parties must consult one another regarding any significant decision regarding the child. In joint legal custody situations, one party cannot make a decision regarding the child if the opposing party disagrees.  If they cannot agree, they must resolve the disagreement through the courts or with the assistance of a mediator. Conversely, if one party has “sole legal custody”, that party can make such decisions on behalf of the child even though the other party disagrees. 

With physical custody, courts use the terms joint physical custody, sole physical custody and, more recently, shared physical custody. Joint physical custody simply means both parties will have significant, although not necessarily equal, parenting time. Sole physical custody means the child will reside primarily with one parent, subject to the other parent’s visitation rights. The distinction is not always clear. 

One important result of a sole physical custody order is that courts have held a parent with sole physical custody has the presumptive right to change the child’s residence without the permission of the other parent. This right is subject to the court’s ability to stop a parent from changing a child’s residence when doing so would prejudice the rights or welfare of the child, or where it would adversely affect the other parent’s ability to maintain contact with the child.  There is significant case law on the issue, and these situations are referred to as “move-away” cases.  The determining factor is not just the term used to describe the physical custody arrangement, but also the actual time spent with each parent and other relevant issues.

Finally, in conjunction with physical custody courts also use the terms “custodial parent” and “non-custodial parent”. But these designations also do not, in and of themselves, define the parties rights. Rather, they have become terms of art in family law without conferring or denying the parties’ rights with respect to the child.