What’s the Difference Between Physical and Legal Custody?

Many people assume that child custody is a single issue, but in reality, child custody is a multi-layered issue with a number of different components that will need to be determined when parents separate or divorce. For example, will a parent seek physical custody or legal custody, or both? And who will hold the custody? Will it be shared (joint) by parents or will one parent be awarded sole custody? What about visitation?

Here’s a look at each type of custody, and different options for custody combinations that may be put in place.

When people refer to child custody in everyday conversation, often what they are referring to physical custody. A parent who has physical custody of a child lives with the child and tends to his or her day-to-day needs.

The other type of child custody, legal custody, refers to a parent’s right to make important decisions about the child. These include decisions about where the child will go to school, what type of medical care he or she will receive, and other important issues affecting the child’s health, wellbeing and upbringing.

Any divorce case involving children will involve questions of both legal and physical custody.

Now here is where it often gets a little tricky. Just as there are two types of child custody in New Jersey, there are also two different ways that custody may be awarded: jointly or solely. This means that both types of custody rights can be awarded to both parents together or retained by one parent alone.

For example, in some situations, divorced parents may share both physical and legal custody of a child. In these cases, the child spends time living with both parents, and each parent has a right to be involved in major decisions about the child’s life. In other scenarios, a court may grant shared legal custody to both parents but award one parent with sole physical custody. In this scenario, the child would live primarily with one parent, but both parents would have a say in important decisions affecting the child.

When one parent receives sole physical custody in a New Jersey divorce, the other parent will typically receive visitation rights, which are sometimes referred to as parenting time. Except in rare cases, children generally benefit from having both parents actively involved in their lives on a regular basis. By granting visitation rights to a noncustodial parent, the courts try to facilitate ongoing contact between the child and that parent. Depending on the circumstances, the court may provide a detailed visitation schedule or leave it up to the parents to work out the details on their own.