Physical Custody vs. Legal Custody
Posted on May 2, 2022 in
If you’re considering a divorce or are in the early stages and you have kids, then you’re probably thinking about who will get custody.
Child custody is more complicated than a simple custody/no custody solution. In fact, it’s incredibly rare for a parent who wants custody to get no custody at all. Instead, the court separates out different types and levels of custody — all in the best interests of the child.
The two types of custody are legal custody and physical custody.
What is legal custody?
Legal custody is a parent’s right to make big decisions about a child’s life. For instance, a parent with full legal custody can make healthcare decisions for their child, decide where they’ll be educated, what extracurricular activities they’ll participate in, and how they’ll be raised religiously.
Who gets legal custody?
Joint legal custody is very common in divorces that include minor children. Judges err on the side of joint legal custody because when both parents have legal custody, they both have an opportunity to remain engaged in their child’s life.
Joint legal custody doesn’t necessarily mean that both parents’ decisions carry the same weight. After all, how would decisions get made if the two parents disagree?
Generally, one parent has final decision-making authority — and that’s usually the parent who has primary physical custody (discussed below). Of course, having that final authority doesn’t mean that the parent can make unilateral decisions. Each parent must consult with the other before making a major decision, and final authority only comes up in the event that they’re unable to reach an agreement.
In some situations, the court splits final decision-making authority, awarding certain spheres to one parent and certain to the other. For instance, one parent may have final decision-making authority over education and extracurricular activities where the other has it over religion and non-emergency healthcare issues.
See: The Best Way to Help Children Cope With Divorce? Make It Amicable
What is physical custody?
Physical custody covers where the child is physically present — where they live. Physical custody sets the schedule for where the child will be when, including regular parenting time as well as holidays and school breaks.
Who gets physical custody?
The most common physical custody arrangement is for one parent to have primary physical custody and one parent to have secondary physical custody. Usually courts award primary physical custody to the parent who has been the primary caregiver for the child for their life up to this point.
The other parent will get parenting time, ranging anywhere from short supervised visits all the way up to shared weekends and holidays.
Joint physical custody means that there’s a 50/50 time split between the two parents. Joint custody is becoming more and more common, especially in families where both parents shared parenting responsibilities prior to the divorce.
There’s a good reason for its increasing popularity. Joint custody can minimize the disruption of a divorce for children since they still see both parents frequently. 50/50 schedules can also make it easier for both parents to remain actively involved in the children’s lives. And studies show that continued connection to both parents is better for kids.
Joint physical custody isn’t always easy. It works best when co-parents get along well because it requires a lot of coordination and cooperation between the parents. A co-parenting app can help parents manage schedules and logistics.
You may have also heard the term “sole custody.” That’s extremely rare. Sole custody means that one parent has full legal custody and full physical custody with no parenting time for the other parent. Courts generally see some parent involvement as best for the child except in the most extreme situations.
See: Co-parenting After Divorce: Is a Shared Custody Agreement Right for You?
Who pays child support if there’s shared custody?
In Georgia, child support is calculated with a set formula, and Georgia’s free child support calculator tool is available to anyone.
However, deviations based on the specific circumstances of a case can impact the final child support award. Parenting time is one of those potential deviations. The more equitable the share of parenting time, the less likely that one parent will have a higher child support burden than the other.
So if one parent brings in 80% of the family’s income, an initial look at their presumptive child support amount might indicate a high monthly payment. But if that parent also provides 40% of the parenting time, their child support burden will be significantly lower than that initial calculation suggests.
Read more about exactly how child support is calculated in Georgia.
When can my child choose which parent to live with?
In Georgia, a child can choose which parent to live with when they’re 14 years old. Courts will weigh the child’s election heavily, but they can reject it if they think physical custody with the other parent is in the child’s best interest.
The child’s election does not keep the non-chosen parent from having a right to parenting time.
A child between the ages of 11 and 14 can share their custody desire with the court, but it does not carry the same weight as a 14 year old’s election.
Do we need a parenting plan?
Every final divorce decree that includes minor children must have a parenting plan. A parenting plan sets out all the terms of custody, including both legal custody and physical custody.
If the two parties come to an out-of-court agreement, either through an uncontested divorce or a pre-trial mediation, they’ll work with their attorney(s) to draft their parenting plan and submit it to the court for approval.
In a divorce that goes to trial, both parties must submit parenting plans. The court considers these in its custody determination.
The parenting plan is very detailed about the specifics of custody. It provides exact information about parenting time, including holiday schedules. The parenting plan also explains who has final decision-making authority for the child’s medical, religious, educational, and extracurricular activities.
See: Reaching a Child Custody Agreement Without Going to Court
How is child custody decided?
All states, including Georgia, make child custody determinations based on the “best interests of the child” standard.
The judge considers many factors to make their decision, including:
- Each parent’s mental and physical health, including substance abuse
- Each parent’s involvement with the child, including emotional connection as well as their familiarity with the child’s educational and extracurricular activities and medical and social needs
- Each parent’s ability to provide for the child’s needs
- Each parent’s home environment, including any step-parents or step-siblings
- Each parent’s willingness to cooperatively work with their ex-spouse to maintain the child’s connection to both parents
- Either parent’s history of abuse or criminal activity
The judge has broad discretion, so they can consider other factors they deem important. They can also seek outside advice from guardians ad litem or custody evaluators.
Divorcing couples that come to an agreement about legal and physical custody outside the courtroom have much more control over the process. And they generally create a less painful process for their children. We work with couples to negotiate and develop parenting plans in uncontested divorces. Schedule your legal clarity session online.