Child Custody Basics: Physical and Legal Custody
As the rate of divorce rises, so does the number of child custody cases that are being filed in America’s courtrooms. Child custody cases can become complex as they are agreements to be worked out between parents in a difficult, usually adversarial situation. It is best to learn in advance about what you will be facing in a child custody case before you make the decision to file for custody. You will most likely need to contact an experienced divorce attorney for up to date information on child custody laws that apply in your individual state.
Background on Child Custody Laws
Each state has its own child custody laws but all are designed to have the “best interests of the child” in mind. Of paramount importance is protecting the children from dangerous environments and ensuring that parameters are set for child safety. Examples include protection against both mental and physical abuse, e.g. one parent abuses drugs or alcohol or will engage in verbally berating the child. Such information should be raised and be addressed by the court during a custody case.
State child custody laws handle two primary kinds of custody - physical custody and legal custody. Physical custody concerns the physical location where the child lives while legal custody determines who has the right to make decisions concerning the child. When a divorce is acrimonious, child custody can be a frightful battle between parents and centers around these two important issues.
Physical Custody
Physical custody is where the court decides where the child will live – the physical location. It is not uncommon for the court to order “joint physical custody” of the children who will live with both parents but at arranged times. Joint physical custody works well when the parents live within close proximity of each other. The child will be able to keep somewhat of a normal routine going if he or she can spend time at the homes of both parents on a regular basis and with minimal disruption.
When parents live at a significant distance away from each other, “sole physical custody” may be deemed a more appropriate measure. With sole physical custody, the child lives at the physical location of only one of the parents. In this situation, the other parent would be awarded visitation rights.
Legal Custody
When one parent is awarded legal custody of the child that means that they have the right and obligation to decide how the child is to be raised. When “Sole Legal Custody” is awarded, one parent will have the right to make critical decisions that may affect the child’s life, e.g. where the child goes to school, what religious affiliation the child will have, the type of medical care to be received and even what language is to be spoken in the home. Religious and linguistic matters are frequently issues in cross cultural divorce cases.
When both parents are awarded legal custody, it is called “Joint Legal Custody” – a situation where the right to decide important matters are given to both parents. If one parent tries to omit the other parent from making decisions, the court can be petitioned to have this portion of a custody agreement enforced. While trends seem to point towards most states preferring to award joint legal custody, it can create a challenging situation. Unless the parents can work out disagreements between themselves, a costly legal battle will frequently ensue.
While one parent can be awarded sole legal custody, the other could be awarded sole physical custody. New trends reveal an increasing number of states trying to encourage the divorced father to play a larger role in the life of the child. Even if the mother is granted sole physical custody, the courts will frequently award joint legal custody to both the father and the mother. The non-custodial parent is given the right to make joint decisions about the raising of the child and will be given visitation rights, even if they must be supervised.
During the holidays and the summer months, the court will frequently provide for the child to live with the other non-custodial parent. During these situations, the court allows physical custody to move from one parent to the other for the short time the child is visiting the non-custodial parent.
The Issue of Child Custody and Religion
The subject of child custody and religion is becoming a more intense legal issue due to the increasing number of interfaith marriages and higher divorce rate. There are no federal laws governing child custody and religious matters, an area which is left exclusively to the individual states. Virtually all states use one of three different legal standards in the decision making process and the balancing of factors of the best interests of the child and the autonomy (freedom from intervention) of parental rights.
- Actual or Substantial Harm – the court will restrict a parent's First Amendment or parenting rights only if the court decides that the parent's religious practices cause actual or substantial harm to the child.
- Risk of Harm – one parent may have a restriction on his or her First Amendment or parenting rights if that parent's religious practices are deemed to potentially cause a significant future risk of harm to the child.
- No Harm Required – if the custodial parent objects to the non-custodial parent's religious activities, the court will defer to the custodial parent's wishes. To win your child custody case in these situations, you will need to have a very good understanding of child custody laws.
When you are married, you naturally share the custody of your children so you have more control over how you want them raised and which religion, if any, you want them to be exposed. Once you are divorced, that control is lost to some extent, frequently dependent upon who wins legal custody of the children. If you want to win your child custody case, not only should you seek the advice of an experienced child custody attorney but it is also of paramount importance for you to become very familiar with the child custody laws of your state.
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14 Comments on “Child Custody Basics: Physical and Legal Custody”
my sons father has not provided him with a place to sleep in his household. it’s been over 7 years. i provided son with a blow up bed when overnight. piece broke on pump. father put him in bed with a male adult (not his family). I won’t allow (12 year old )son to stay over if proper bedding is not provided. father and i have talked. he’s not taken this seriously. i have not stopped visits and encourage unscheduled days, holidays, weekdays, and weekend visits. We have no problems. fathers changed mediation agreement his self. I still accomodate him with son. can i make this demand legally. If not how do I apply for sole custody.
You’ll have to go to court in order to “apply” for sole custody and it typically is not easy. You’re also going to have to explain why such an important issue apparently was allowed to linger for seven years. The best place to discuss your issue is in the law forums at http://www.thelaw.com/forums/ - good luck to you!
do you have a form i can fill out or how do i go about fileing contemp papers on my ex without an attorney
I’m not sure what kind of family law form you are looking for. If you have more questions, the The Law Forums should be able to help you find the right legal form name and then the right form to download.
I would like to know my legal rights…my daughters mother and her new husband are keeping my child from me and refuse to allow me any visitation..what rights do I have as a child support paying father?
Try to post in the free legal advice forums in full. You haven’t posted sufficient facts to provide a good answer. In short, as it says in the guide, you should have rights to visitation. What was specified in your divorce decree or separation agreement?
I was married in Mar 08 Divorsed Jan 20,2009. We had a baby girl Aug 08 and he left Sept 25,2008 stating “he was not ready for this”. Since then he has seen her 3 times for a total of 20 min, given me $60.00, call me all the time, lives less than 35 miles away. I am wanting him to give up all legal rights to her. Do I need to get another attourney or can I go through a states attourney? I am really wanting him to give all total rights up as he doesnt seem to care anyways. Thanks for your help
can my son’s wife signed up for online banking & pretend to be him? used his s.s.no.she has done this over a yr. ago without my son knowing. he found out when he was going to sign up..they will be divorcing.they have separate checking accounts. he also has a small business account.she is also missing alot of work & shows up late. we no she wants to get fired or late off to stay home & be with their 3 month old & says my son will have to pay spousal support on top of child support & son’s insurance. she has insurance at her job.please help
I would like to know my legal rights. My son has lived with me since birth. His father and i never married but dated for several years. His father is an alcoholic who is unable t hold a steady job. I moved away for 2 years leaving my son with my mother. I gave permission for her to be his guardian til i returned but nothing was done legally. My son has since moved with me. I would like to know what steps i need to take in order to get full legal custody as well as child support enforced
my son was 3 and my daughter was 1 when the wife and i decided to separate.i just lost my oldest brother in 1986. i wanted to stay in town close to my family (chicago area)
she wanted to go back to texas with her family. after 2 years with her they were suppose to come stay with me for 2 years.she filed a restraining order against me that i was not to see them.i stopped sending money until i could see them.it never happened now. its been 24 years and texas is holding a rearage against me.is there any statue of limitations regarding this.
Please help me,I am 22 yrs old ,have a 2 yr old little girl who I allowed to visit her grandparents in Montana, I live in Georgia.. They picked her up in GA. in Feb. my husband and myself were having marital problems ,he was stationed in S Korea where we met(both were in the US Army). My in-laws had me a plane ticket to go to Montana in March,they cancelled my ticket leaving me no way to get my daughter back. My husband returned here in April ,he stayed in GA.filed for divorce here and kept telling me he would get our daughter back here,he never did. I saved and got a round trip plane ticket and went to MO. I arrived on 9/27 went to the local sheriff’s office with Zoe’s birth certificate,a notarized copy of divorce papers,and my ID.I called my mother in law from there,she then left work and she and my father in law fled town with my daughter.I had a 5 hr layover and did not even get to see her much less bring her home.I was told it was a civil matter.My husband ,whom I have been separated from since his return,took a flight to MO. 9/30 after dropping divorce papers here and filed there. He and his parents have stalled me to gain custody of my daughter. I have done nothing wrong. I have hired an attorney here and can only hope he can help me due to the different state statutes. I am a student and cannot fight them with attorneys in both states,and cannot keep traveling back and forth and they know that.I don’t know what to do and time is running out, I just want my baby. Amanda Porteus
First off we are in KS and have residential custody of all of the children. I have a few issues. My husbands exwife is wanting to see the kids at her leisure. She and her new husband are homeless living with a known meth addict and her husband. She has tormented the kids for the past 3 years now since we have had custody has cancelled visitation repeatedly with and mostly without calling. The kids are 14 12 11 and 9. She constantly asks them if they want to live with “mommy” which is not possible since she does not have a home. They do not want to tell her No to her face when they have done this in the past she bursts into tears and goes to her room and kick and screams making a scene. Its emotionally drains the kids to see her. She talks about my husband and myself constantly when they visit her, to the point her 11 year old son has asked her, over and over, to change the subject, which she refuses. A couple of years ago she was giving her 10 year old daughter “breast exams” every couple of days in the shower, which we reported and NOTHING was done about it. She speaks of us brainwashing the kids and how we are pushing her out of their lives EVERY time she speaks to them. The list goes on and on. I have 5 years of her actions documented but we are concerned about sending them with her anymore. She has visitation this weekend and we are considering contacting SRS to get this stopped and report everything she has done to them. Recently she has moved from OK to KS immediately after the child support order was registered. We have lost patience with her and she is mentally abusing these kids every visit. What can we do? I do have other things documented some worse, some not as bad but we dont know where to go from here. We gained custody Pro Se in Florida after she took off with them during her afternoon visit and took them to OK from FL in the middle of the night. These kids have been through it all. Where do we go from here?
My 12 year old child’s mother has let him live with me (800 miles away) as she can not handle him anymore(with certain disabillities that he has).
I have him enrolled in school here and he’s doing great. We have not made an adjustment on the custody front so he’s living here and she has sole custody.
What steps do I need to take and in which state(hers or mine) to establish legal custody over my son.
I have a good case as his mother has mental issues and a felony record and has 3 children yet at the age of 31 has never worked one day in her life to support them. The more my son is here the less I believe her about all of his medical issues. He has been diagnosed with bipolar disorder, ADHD & Dyslexia. She says he is violent yet in all the summers and holidays he has spent with me and now living with me I dont see it at all. Just a child that is hyper and has too much energy.
I am under the impression that she has been feeding doctors all of this garbage and had him on som many different meds so that she can claim the disabillity check from Medicair each month. She has another daughter on disability as well and wont cancel his medicair so that I may enroll him on my insurance mid year because it would stop her check(which is supposed to go to his needs, not hers 800 miles away.
She has already lost custody of one of her sons and for more reasons that dont need to be explained right now, I find her very unfit.
Any help that would point me in the right direction would be greatly appreciated.
To the question about child custody, you can speak to others in The Law Forums and how they have handled similar situations. Have you petitioned the court to terminate the mother’s custody and establish your own? It would seem that you have plenty of evidence (and the consensual custody of the child) in order to establish your case, in addition to all the other factors which a court would be concerned about.