People are often surprised to find out from their domestic relations attorneys that there are two different types of custody that have to be addressed: physical custody and legal custody.
Physical custody is simply which parent the children are with at a given time. This is generally addressed in a custody agreement or custody order based upon three time periods. First, who has the children on a regular weekly basis. This is for both days and nights. Second, how much vacation time does each of the parents have with the children. Third, who has the children on holidays. The parents can decide which holidays are important for them to address, and usually not every holiday is considered. Primary physical custody occurs when one parent has the child or children more than half of the overnights each year. The other parent is then considered the partial physical custodian. Even if there is a primary and partial physical custodian, this custodial arrangement is still considered a form of shared physical custody. Equal physical custody occurs when the parents each have half of the overnights in a calendar year.
Legal custody relates to legal decisions that impact the children. The major areas of legal custody are education, religion and healthcare decisions. In the vast majority of custody cases, the parents will share legal custody and therefore make these decisions jointly. Parents with younger children will have to make more legal custody decisions as compared to those with older children, for whom many of these determinations have already been made.
Custody schedules can be structured many different ways based upon what is in the best interest of the children, and what works for the parents. Parents are highly encouraged by the court to work out custody schedules. If they are not able to, the court will make a determination and issue a custody order.
Custody is often the most emotional aspect of a divorce or separation. We strongly recommend that parents facing custody issues contact an attorney to be sure they understand the process, and their rights under the law.