What is the Difference Between Legal and Physical Custody of Children?

Scibelli LawDivorce

A question I am frequently asked by clients is, “What is the difference between legal vs. physical custody of children?”

In the context of custody cases of minor children, the Court determines both legal and physical custody.

What is Legal Custody?

Legal custody involves decision-making authority with respect to children. Legal custody applies to significant decisions, such as those involving education, medical issues, and religion. For example, legal custody is relevant to determining whether a child takes a particular medication, whether parents agree to implement the terms of an IEP plan, and/or whether a child attends a religious school or is raised in a particular religion.

It is important to remember that legal custody encompasses major life decisions, not to day-to-day parenting choices. For example, the amount of screen time allowed per day, or the time of a child’s curfew, fall under everyday parenting decisions. Each parent is entitled to make their own individual parenting choices in their home.

Generally speaking, joint legal custody requires a showing that the parents are able to cooperate in the decision-making process and that there is no significant impairment (such as substance abuse or a history of domestic violence) that impedes the joint decision-making process.

What is Physical Custody?

Physical custody is – just as it sounds – a determination of where the child physically resides. Where will the child lay his or her head each night? There can be as many types of physical custody parenting plans as one can envision, but most generally fall into one of two categories: primary physical custody with one parent, or shared physical custody with both parents.

Primary physical custody is defined by a parent having a child for approximately 2/3 or more of the time. Primary custody often means the child lives with one parent but spends alternating weekends with the other parent, and perhaps some weeknight supper visits.

Shared physical custody is defined by the parties spending an approximately equal number of nights with the child. Again, there are many ways to achieve this. Some examples are alternating weeks with each parent, or Monday and Tuesday with one parent, Wednesday and Thursday with the other parent, and alternate weekends (Friday through Sunday) with each parent. The goal of shared custody is for both parents to have an approximately equal number of overnights with the child.

What Factors Can Affect a Court’s Custody Determination?

Massachusetts Courts employ the best-interest-of-the-children standard in determining custody of children. In making a decision regarding the best interest of the child, Courts consider many different factors. Custody of Kali, 439 Mass. 834 (2003) is one of the lead cases in this area. In the Kali case, the Court listed several factors which Courts should consider in rendering awards regarding custody. Those factors include: evidence of the history of the relationship between the child and each parent, evidence of each parent’s present home environment, and evaluation of overall fitness to further the child’s best interest. The Court may also consider which parent is more attuned to the child’s medical, educational, and daily needs.

Once a child turns 14, his or her preference regarding which parent s/he would like to live with may also be considered. However, this is only one factor; it is not determinative.

The Court has broad discretion to consider a wide range of evidence in making custody determinations. Feel free to contact our office to further discuss the important elements of your custody matter.