Texas Flag
Texas Divorce Laws

What is the Difference Between Legal and Physical Custody?

Michael Tierney
November 27, 2022

One of the most stressful parts of divorce negotiation is child custody. No one wants to surrender their children, even if it means losing custody to their spouse. Our children are one of the most essential parts of our lives; going through it without them is inconceivable to most.

Nevertheless, both parents have an equal right to maintain a presence in their child's life despite a divorce. The negotiations in a divorce usually determine which parent is granted custody while the other receives visitation rights. This has been the process for years and has focused on keeping the child with the parent with the best tools for providing for their children.

Unfortunately, there are a few misconceptions regarding what custody means. Custody can pertain to several situations and circumstances that subtly alter its meaning to fit them. Keeping track of legal definitions can be challenging, considering how many different aspects there are in law. Custody is no exception, as each case and the circumstances around them have multiple forms of custody that apply to the situation.

Child custody is a concept that can be complicated since a child living with one parent does not necessarily mean they have custody, as you might understand the term.

Solution We must consider two major types of custody during divorce proceedings: legal and physical.

What is Legal Custody?

The term "legal custody" might seem redundant, given that custody is a legal concept that determines who is responsible for your child.

Solution However, legal custody is a distinct concept that focuses on the parent's role in their child's life. Legal custody refers to the parent who is given authority over the major decisions in the child's life.

Essentially, the parent assigned legal custody of the child is responsible for managing the most important parts of the child's life, such as education and healthcare. The parent with legal custody will be granted complete authority over any medical decisions the child needs. If the other parent has no legal custody, they cannot counter the custodial parent's wishes.

Legal custody is easily one of the most important concepts in divorce since it determines which parent controls the health and education of the child. Legal custody is perhaps one of the most significant rights awarded during divorce, and both sides covet it during the negotiations. Legal custody can be divided into sole legal and joint legal custody. Sole legal custody is, as the name implies, when a single parent is awarded legal custody while the other parent is denied any role in the decisions such custody demands.

Mother With Legal Custody

Joint legal custody is when both parents are awarded legal custody and must cooperate on major decisions such as healthcare and education. Joint legal custody is generally the default since both parents have an inherent right to raise their children. Joint custody enables both parents to maintain their role in how the child is raised, where they receive medical care, what schools they attend, and so forth. Legal custody is only awarded to a single parent when extenuating circumstances make the other parent unfit to play such a significant role in their child's life. The main criteria that might exclude a parent from joint legal custody are if the parent:

  • Lives in a radically different geographical location compared to the child and the other parent. (i.e., A parent living in New York will likely lose legal custody rights if their child lives in California.)
  • Is neglectful or abusive. (i.e., They physically or mentally abused their child or the other parent during the marriage.)
  • Has no presence in the child's day-to-day life. (i.e., They go weeks, months, or years without interacting with their child.)

If both parents do not meet the above exclusions, they will likely be assigned joint legal custody and must cooperate with their spouse on major decisions. While legal custody is important, it does not mean the child is present in the parent's household. Legal custody only assigns authority over major life decisions for the child and does not dictate where the child will live or with whom they live.

What is Physical Custody?

While legal custody allows a parent to manage the details of their child's life, it does not guarantee the child will live with them. Physical custody determines which parent cares for the child full-time and tends to their day-to-day needs, like housing and food. Physical custody is just as coveted as legal custody since every parent wants to have their child close to them.

Physical custody arrangements are one of the most hotly debated considerations in divorce and can cause a significant amount of strain on the negotiations. Physical custody might cover a different range of rights than legal custody but shares the same subtypes. Depending on the circumstances, parents can either be awarded sole physical or joint physical custody.

Sole physical custody means the child lives with one parent and might not see the other parent until they are adults and free to seek them out. Depending on what caused the parent to be awarded sole physical custody, they can legally prevent the other parent from interacting with the child. A parent with sole physical custody can also move across the country with the child without input from the other parent.

To combat such a move, the non-custodial parent must go to court and prove that the move is against the child's best interests. A parent being assigned sole physical custody does not always mean the other parent cannot see the child, but we will discuss that later.

Father With Physical Custody

Like legal custody, sole physical custody is not the standard, and most courts aim to award joint physical custody to ensure the child has a healthy relationship with both parents. If the parents remain in close proximity, joint custody has the child alternating which parent they live with based on a predetermined schedule.

Joint physical custody does not always mean a 50/50 split but could mean that one parent gets the children Monday through Friday while the other gets them Saturday and Sunday. Such divisions are determined during the negotiations and are usually non-negotiable once the decision is finalized.

Physical custody arrangements are just as important as legal custody arrangements and ensure that the parent best suited to tend to the child's daily needs has custody. Determining custody is a little more complicated than assigning it to a particular parent. Keeping abreast of the details used in determining custody can be just as important to navigating the divorce process and understanding the significance of custody.

How is Custody Determined?

Child custody is an important part of divorce negotiations that requires careful consideration during the divorce process. The most sacred part of custody arrangements is the child's best interests. The child needs to have the same or similar quality of life they enjoyed before the divorce when they are sent to live with a specific parent. If one of the parents cannot provide that quality of life, the judge will usually send the child to live with the one who can. However, a series of intertwined factors determine the child's best interests.

When a judge determines what is in the child's best interest, they consider the following details:

  • The child's age.
  • The child's sex.
  • The child's health (mental and physical).
  • The health of both parents (mental and physical).
  • The lifestyles of both parents.
  • The emotional connection the child has to each parent.
  • The capacity each parent has to provide the child with food, shelter, clothing, and medical care.
  • The child's established lifestyle (i.e., home life, community, religious affiliation, education, etc.).
  • The quality of education the child can have with each parent.
  • The child's preference. (This is only applicable if the child is mature enough to offer input. Usually, teenagers have this ability.)

The judge carefully considers all of these details when determining custody arrangements. If one parent is in a better position to provide the best quality of life for the child, they have a better chance of getting physical custody. Remember that just because you or your spouse might be awarded physical custody of the child does not mean the other is inherently deprived of legal custody. So long as you and your spouse are present in your child's life, you will likely get joint legal custody of the child.

Mother With Child Custody

When physical custody is assigned, the visitation schedule will determine how often you or your spouse see the child. Ultimately, your child's needs will outrank any argument made in the divorce negotiations since the child is the one being sent to live with a single parent.

While these decisions are generally considered immutable once the divorce is concluded, not everyone is willing to leave the custody arrangement as it was originally established. This means people's biggest question about established custody arrangements is whether they can alter the arrangement to better accommodate the non-custodial parent.

How to Modify Custody Arrangements

Modifying an existing custody arrangement is no easy task since most judges are resolute in their decisions. Most judges are hesitant to alter custody arrangements since the judge made the initial decision to ensure the child's life remained stable; altering the arrangement could be seen as disruptive to most officials.

Therefore, most judges are not receptive to altering the custody arrangement and uprooting the child from an otherwise stable environment. Despite the reluctance of the courts to modify the custody arrangement, it is feasible to have the current setup adjusted to suit your needs better. While altering legal custody is less likely, the modification of physical custody arrangements is possible for the right reasons.

To modify a custody arrangement, you must file an official request with the court system. If the modification is to be successful, you need to prove that circumstances have changed to a point where the current arrangement is no longer viable. The circumstances of custody modification vary by state, and the process might change accordingly.

Mother Speaking With Child

Some reasons for custody modification transcend state borders and include:

  • Physical Relocation: If the custodial parent moves and takes the child with them, you might be able to have the schedule modified to suit the altered commute. Alternatively, if you can prove the relocation will adversely affect the child, you could modify the custody arrangement.
  • Defiance: If the custodial parent refuses to honor your visitation rights or adhere to the custody arrangement as outlined by the court, you can request a modification. Your spouse cannot alter the visitation schedule as they please, and doing so could cost them custody altogether.
  • Child's Needs: Sometimes, a child develops mental or emotional disorders throughout their life. If you are better equipped to handle such disorders than your spouse, you could petition to alter the custody arrangement to ensure the child receives the care they need.

Modifying a custody arrangement is extremely complicated and will not always be successful. It is more common for these petitions to fail unless the reason you present is a major issue. Nevertheless, the possibility remains and might be successful even if you have doubts the court will take your petition seriously.

Learn the Law

Child custody, physical or legal, is a complicated facet of the divorce process that seldom satisfies both spouses. Ultimately, one spouse gets what they want while the other does not, which can be very disappointing. Understanding the difference between physical and legal custody is essential when negotiating custody terms in divorce. This information can help you better understand what is being discussed and how the terms will affect your time with your child. Unfortunately, this information is not all you need to know to navigate divorce law successfully.

Divorce Child Custody

Divorce remains one of the most complicated civil matters in law, and working through the finer points can be very challenging. In divorce, knowledge is the ultimate weapon to defend your rights and interests. This applies to negotiating custody arrangements and any other detail you might encounter in divorce. We realize this is an unpleasant situation, but we hope this article has proved helpful in your search for knowledge.

We encourage you to share this article on Twitter and Facebook. Just click those two links - you'll see why.

It's important to share the news to spread the truth. Most people won't.

Written By:
Michael Tierney

Leave a Reply

Your email address will not be published. Required fields are marked *

Get Our Divorce Newsletter
Subscribe to receive information, free guides and tutorials