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What is the difference between physical custody and legal custody?

On Behalf of | Jan 12, 2021 | Child Custody

Where parents are concerned, determining child custody is one of the key issues to resolve in a divorce. Sadly, it can also be one of the most likely issues to cause stress and conflict.

You can reduce the chance of a child custody dispute by ensuring you understand the terms used and the options available.

What different types of custody can parents have?

There are a number of phrases you’ll hear tossed around about custody: Sole, joint, physical and legal are all common terms. Here’s what they mean:

  • Physical custody: This term is used to describe where a child lives.
  • Legal custody: This determines which parent makes important decisions for the child, including things like schooling, health care, dental care, religious instruction and so on.
  • Sole custody: This means custody rights are given to only one parent.
  • Joint custody: This means the parents share in their custody rights.

Judges typically prefer to give parents joint legal custody of their children. When a judge awards sole legal custody, they need a significant reason to justify their decision. Typically, that’s usually because one parent is seen as unfit. That could be due to a history of violent or abusive behavior, substance abuse, mental illness or incarceration, for example.

Can both parents have physical custody?

Typically, the courts also prefer to give both parents joint physical custody of the children, as well. This is sometimes called “shared parenting.” It would signify that the child lives with each parent for approximately the same amount of time.

In other situations, the court may determine that it’s better for one parent to have primary physical custody of the child and the other parent to have secondary physical custody. That means that the child would primarily live with the first parent while still staying with their other parent on occasion, like alternate weekends or over summer vacations.

Even if one parent is given sole physical custody, however, the other parent may still be awarded visitation rights.

How will custody be determined?

North Carolina law requires that child custody decisions be made based on the child’s best interests. The court will consider the child’s age, each parent’s ability to care for the child properly, the stability of the child’s life in each home, any past history of violence or abuse on a parent’s part and numerous other factors when making their decision — but it is always the child’s needs that will be considered first, not the needs of the parents.

Once custody is decided, a parenting agreement will usually be put into place to solidify the agreement and address any important issues about visitation, the child’s care and so on.

Can you gain more control over your custody situation?

You can. Parents who are willing to work together for their children’s best interests can usually work out a parenting and custody plan without the court’s involvement. Doing so puts you in control — not a judge — of your child’s future. Talk to an attorney to learn more.

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