Child Custody Attorney: Difference Between Legal and Physical Custody

 Child custody is a term that refers to the legal guardianship of a child. It describes the legal relationship of the child who is in the care of the legally recognized parent or guardian. Having child custody means that a parent or guardian has the right to either reside with or make decisions for the child. Normally, a married couple has joint custody over their child. Child custody is often raised during other legal proceedings such as divorce. A child custody attorney is needed to handle the legal proceedings and the negotiations involved. Most states consider the child’s best interests when deciding about custody.

Types of Custody

Legal Custody

Legal custody is mostly awarded to a guardian or parent, allowing them to make important decisions about the child’s life. Legal custody can be sole or joint, depending on the situation of the case. Legal custody involves making decisions for the child’s extracurricular activities, religious discipline, academic choices, healthcare, cultural beliefs, and psychological counseling. A child custody attorney is needed to help the parents negotiate the terms of the custody.

Courts prefer that both parents have the right to decide for their child through joint custody. Having joint custody is an attractive option as it allows both parents to be part of their children’s life despite the divorce. Joint custody allows parents to collaborate in making decisions for their kids. Joint custody works when both parents can cooperate, agree on the fundamental values, and both are active in raising the kids.

If the parents never agreed on the decisions that are made for the child, causing friction between the two parties. If conflicts arise, the judge may allow one parent to have sole custody of the children. This would mean that the only parent can make decisions for the child. Some reasons why the court would choose sole custody is when the parents far apart, one parent is neglectful or abusive, or one parent is not active in the child’s upbringing. Having sole custody of the child would mean that the parent does not need to consider the other parent’s opinions.

Physical Custody

Physical custody is given to a parent to be able to live or reside with the child. Physical custody can be granted solely to one parent. If the court finds out that one of the parents is unfit, full sole physical custody is given to one parent only. However, if both parties are responsible, parents will be able to share physical custody. In some cases, I reside with one of the parents most of the time but can freely visit the other parent. If a child lives with one parent most of the time compared to the other, the home where the child mostly resides will be the primary residence.

There are multiple factors that the court would use to determine which parent should have the physical custody of the child. Some of the factors that the court uses to determine which parent should have physical custody include:

  • A parent that has been previously and mostly the child’s caretaker.
  • A parent that has the support and resources to be able to take care of the child. 
  • A parent that lives near the child’s school district.

Depending on the jurisdiction, if the child reaches a certain age, the court will consider if the child can make a reasoned decision on which parent does he or she prefer to live with. The child’s preference is also taken into consideration.

Unmarried Parents

If a child’s parents are not married, most states would award the sole physical custody to the mother, unless the father would file for the custody. If there was no marriage, the father would have a hard time winning a custody battle against the mother, especially if the mother is proven to be a good parent. However, the father can file legal steps to secure visitation or some form of custody.

Going through a child custody battle can be very stressful. It is important for the parent to know the laws and how decisions are going to make for the child. A firm like Benari Law can provide a child custody attorney that has specialized knowledge in the field.

 

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