physical custody

Definition of physical custody

Further reading

Physical custody involves the day-to-day care of a child and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her.

If a child lives with both parents, each parent shares "joint physical custody" and each parent is said to be a "custodial parent". Thus, in joint physical custody, neither parent is said to be a "non-custodial parent." In joint physical custody, actual lodging and care of the child is shared according to a court-ordered custody schedule (also known as a "parenting plan" or "parenting schedule"). In many cases, the term "visitation" is no longer used in this context, but rather is reserved to sole custody orders. Terms of art such as "primary custodial parent" and "primary residence" have no legal meaning other than for determining tax status, and both parents are still said to be "custodial parents".

In some states, "joint physical custody" creates a presumption of "equal shared parenting". However, in most states, joint physical custody only creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents. Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.

If a child lives with one parent, that parent has "sole physical custody" and is said to be the "custodial parent" whereas the other parent is said to be the "non-custodial parent", but may have visitation rights or "visitation" with his/her child.

Joint physical custody

Joint physical custody is a court order whereby custody of a child is awarded to both parties. In joint custody, both parents are custodial parents and neither parent is a non-custodial parents; in other words, the child has two custodial parents.

Many states recognize two forms of joint custody: joint physical custody, and joint legal custody. In joint legal custody, both parents share the ability to have access to educational, health, and other records, and have equal decision-making status where the welfare of the child is concerned.

In joint physical custody, which would include joint physical care, actual lodging and care of the child is shared according to a court-ordered custody schedule (also known as a parenting plan or parenting schedule). In many cases, the term visitation is no longer used in these circumstances, but rather is reserved to sole custody orders. In some states joint physical custody creates a presumption of equal shared parenting, however in most states, joint physical custody creates an obligation to provide each of the parents with "significant periods" of physical custody so as to assure the child of "frequent and continuing contact" with both parents. For example, states such as Alabama, California, and Texas do not necessarily require joint custody orders to result in substantially equal parenting time, whereas states such as Arizona, Georgia, and Louisiana do require joint custody orders to result in substantially equal parenting time where feasible. Courts have not clearly defined what "significant periods" and "frequent and continuous contact" mean, which requires parents to litigate to find out.

It is important to note that joint physical custody and joint legal custody are different aspects of custody, and determination is often made separately in many states' divorce courts. E.g., it is possible to have joint legal custody, but for one parent to have sole physical custody In some states this is referred to as Custodial Parent and Non-Custodial Parent.

Also, where there is joint physical custody, terms of art such as "primary custodial parent" and "primary residence" have no legal meaning other than for determining tax status, and both parents are still custodial parents.

Sole physical custody

Sole physical custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation. Physical custody involves the day-to-day care of a child and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her. If a child lives with only one parent, that parent has sole physical custody and is said to be the custodial parent. The other parent is said to be the non-custodial parent, and may have visitation rights or visitation with his/her child.