Can I Have Joint Custody When the Mother Has Primary Physical Custody?
By Elizabeth Rayne, J.D.
Effectively dividing parenting responsibilities between two parents who live apart is no easy task. From the parent's perspective, understanding how the court differentiates between legal custody and physical custody can be helpful, particularly in cases where a judge may award sole physical custody to one parent, but shared legal custody to both parents. It is important to note that while each state makes a distinction between physical and legal custody, the applicable laws vary from state to state.
Primary Physical Custody
Physical custody refers to where the child lives, and how much time the child spends with each parent. Depending on the laws of the state, the court may award sole custody, joint custody, or primary physical custody. With sole custody, the child only lives with one parent, while the other parent may have scheduled visitation or parenting time. Joint physical custody allows each parent approximately equal time with the child. Where one parent is awarded primary physical custody, this generally means that one parent has physical custody for more than half the time, while the other parent has partial custody, and spends less than a majority of the time with the child.
In contrast to physical custody, legal custody refers to which parent makes major decisions about the child's welfare. Major decisions may refer to issues surrounding the child's education, health care, or religion. Like physical custody, legal custody may be awarded solely to one parent. The court may also award joint legal custody, meaning that the parents must agree on decisions regarding the child, or that each parent is responsible for certain decisions. With joint legal custody, both parents may inquire schools and doctors about information regarding the children, while this may not be the case with sole legal custody.
Primary Physical Custody and Joint Legal Custody
Generally, when one parent is awarded sole or primary physical custody, it is not uncommon for the court to order joint legal custody to both parents. Often, physical custody is given to one parent or another because the parents live far apart, but because the courts generally want both parents to be involved in the lives of the children, the court will award joint legal custody. However, joint legal custody will only be awarded if the parents can demonstrate that they are able to agree and work together on issues affecting the child.
Final Decision Making Authority
When the parents have joint legal custody, there may be some confusion as to which parent has the final say in making decisions for the child when the parents cannot agree. Some divorce decrees may specify which parent has the ultimate say, or a divorce decree may have the parents attend mediation in case of disagreement over major issues. Conversely, some states provide that the parent with primary physical custody is the one who has the final say in disagreements.
Elizabeth Rayne earned her J.D. from Penn State University and has been practicing law since 2009, advising clients on issues ranging from employment law to nonprofit management. For two years, she served as a contributing editor for the "Vermont Environmental Monitor."