Types of Child Custody, Part I

The most important and contentious part of a marital separation or divorce is almost always the decisions regarding custody and visitation.  While there are a myriad of psychological reasons for the acrimony that surrounds the decision of who the children will live with, one major reason for the custody battle is financial.  If the children live with one parent, then the other parent will be required to pay support. 

Legal Custody and Physical Custody:

There are two types of custody – legal custody and physical (or residential) custody.  Physical custody involves where the children will live or reside.  Legal custody involves making decisions regarding the children’s health, education, religious upbringing and other important decisions involving the children’s general welfare.  These are not the day-to-day decisions like bedtime or discipline, but decisions about where the children attend school or whether to put a child on medication.  The child’s legal custodian makes these decisions until the child reaches adulthood.  In determining which parent has legal or physical custody of the children, the judge must decide what is in “the best interests of the children.”

Types of Legal Custody:

Legal Custody can be either sole or primary custody (where legal custody is awarded to just one parent) or joint custody (where legal custody is assigned to both parents).  Sole legal custody is usually awarded to one parent where the other parent has not participated in the children’s life and therefore cannot participate in decisions regarding the children’s best interests.  There is no duty on the parent with sole legal custody to discuss decisions regarding the children with the other parent.

Primary legal custody is awarded to one parent, but does not exclude completely the other parent from important decisions regarding the children.  Often there is a duty to inform the other parent of these decisions and provide access to the children’s school records, events, and health care issues.  While the primary legal custodian makes the important decisions facing the children, the other parent is entitled to know what those decisions are and participate in important events in the children’s lives.