Physical Custody vs. Legal Custody: What Parents Need to Know

Whether you’re going through a divorce or you were never married to your child’s other parent, it’s easy to get overwhelmed with all the details in creating and implementing a child custody arrangement, also called a parenting plan. There is far more to negotiate than simply which parent cares for the child on which days. The first step is learning the lingo and understanding what your case will involve. Let’s take a look at two often confused terms: physical custody and legal custody.

What’s the Difference Between Physical Custody and Legal Custody?

When you’re negotiating child custody and your parenting plan, there are two types of custody to decide on: physical custody and legal custody. Physical custody refers to where the child will primarily live and which parent will care for them on a daily basis. When most people think of custody, this is what they envision. In many cases, one parent has “primary physical custody” while the other has “secondary physical custody”. In other cases the parties share “joint physical custody” and share equal parenting time.

The second type of custody, legal custody, refers to the parent’s right to make decisions on the child’s behalf. This includes making choices about the child’s education, non-emergency medical needs, extracurricular activities, religious life, and more. In the vast majority of cases the parties share joint legal custody. Only in extreme circumstances is one parent awarded sole legal custody.

What Happens if We Have Joint Legal Custody But We Disagree On An Issue?

When you have two people who share the responsibility to make life-changing decisions for their kids, you’re likely to disagree sometimes. When you’re creating your custody agreement or parenting plan, you need to prepare for those differences of opinion. In Georgia law, when parents have joint legal custody, one parent has tie-breaking authority in four major categories: education, extracurricular activities, non-emergency medical decisions, and religion. Neither party has the authority to act alone and the parents must engage in good faith discussions to try to reach an agreement. Only when the parties cannot agree does the parent with tie-breaking authority have the final decision.

If you want to be as fair and equal as possible, you may choose to divide the tie-breaking authority based on the issues. For instance, one parent may have tie-breaking authority for educational and religious matters while the other parent may be the tie-breaker for decisions about non-emergency medical care and extracurricular activities.

What Does a “Typical” Child Custody Arrangement or Parenting Plan Look Like?

In Georgia family law, the parents share joint legal custody in almost all cases. With physical custody you will either share joint physical custody or one of you will be awarded “primary physical custody.” After deciding legal and physical custody and determining which parent has tie-breaking authority in each category, the parents must create a parenting time schedule. This is the daily schedule that the child will follow during the school year, over the summer, and on holidays. Your agreement will depend on factors like each parent’s work schedule, the child’s schedule of activities and obligations, the traveling distance between the parents, the availability of transportation, and more.

How Will the Court Decide on Child Custody and the Parenting Plan?

It is always recommended that the parents attempt to reach an agreement as to child custody and the parenting plan. It is very beneficial to have a lawyer assist in this process because of the knowledge they can offer, and to take the pressure off the parents themselves from having to discuss difficult topics directly with one another. If the parties are unable to agree, the Court can settle the details. To find out what is in the child’s best interests, the Court will consider a wide range of information such as:

  • Your child’s choice if they’re at least 11 years old
  • Each parent’s physical and mental health
  • Each parent’s ability to care for the child, both financially and by giving them the time and attention they need
  • The safety of each parent’s home environment
  • The relationship each parent has with the child
  • Evidence of domestic violence or abuse as well as criminal activity

There are other factors involved as well, and your family lawyer will be able to give the Court as much information as possible to attain a positive outcome for your family.

Child custody is an emotional and challenging matter. When you throw in how legally complex it is, it’s no wonder so many parents find the process overwhelming and stressful. As family law attorneys with over 25 years of combined experience in child custody cases, our role is to both guide you through the process and help you attain a positive result. If you’re ready to get started, call our family law practice to schedule a meeting.