Legal custody refers to the major decision-making for the child. It does not refer to the amount of time that the child spends with each parent.
Physical custody refers to the amount of time the child spends with each parent. The parent with whom the child is living on a given day generally makes the day-to-day decisions for the child. Some courts will skip identifying the primary physical custodian and describe the parenting time (schedule) the child will have with each parent.
The court awards legal custody based on what the judge decides to be in the child’s best interests. The child’s preference of where to live, while important, is just one of many factors the judge considers. Other factors include:
Legal custody may be awarded as sole custody or joint custody.
Sole custody means that one parent handles the primary decision-making.
Joint custody means that the parents share primary decision-making. It does not affect the amount of time the child spends with each parent. Joint custody does not eliminate the responsibility for child support, nor is it grounds for modifying a support order. Each parent is responsible for child support, based on the needs of the child and the resources of the parent. If, without support, a parent would be unable to afford adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for part of housing expenses, even when the child is not living in the home of the parent receiving support.
At the request of either parent, the court will consider joint custody. The court will determine if joint custody is in the best interest of the child, taking into account whether the parents can cooperate and agree on important decisions affecting the child’s welfare. If parents agree on joint custody, the court will award joint custody unless it finds clear and convincing evidence that the child’s welfare dictates otherwise.
Modifying Child Custody Orders
Child custody orders can be modified. The court will consider the time the child has lived in a stable custodial environment and what the judge feels is in the child’s best interest.