Child Custody Understanding Physical Custody and Legal Custody

  1. 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.

    Michael M. Wechsler

    Michael M. Wechsler
    Michael M. Wechsler is an experienced attorney, founder of TheLaw.com and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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