The terms used by courts in child custody matters can seem like a foreign language to divorcing parents. To make matters more confusing, such terms vary by state. Knowing the important custody terms and what they mean to your divorce can reduce much of your uncertainty when interacting with the court on matters related to your child.
The right to make major decisions for your child is known as legal custody. Examples of legal custody decisions include choosing your child's school, the religion he practices, and whether he should accept or decline medical treatment. A parent with legal custody has a say in the decision-making process, regardless of whether the child is currently living with that parent.
When your child stays with you overnight, you have physical custody at that time. A parent with physical custody has the authority to make minor day-to-day decisions for the child when he's in his care, such as choosing the clothes he wears, the food he eats and the time he goes to bed.
When legal or physical custody is split between parents, it is known as joint custody or shared custody. States often default to joint legal custody, unless it can be shown that one parent has demonstrated poor personal judgment, such as with drug or alcohol addiction or incidents of domestic violence. Joint physical custody means that a child has roughly the same number of overnights with each parent according to an agreed-upon or court-ordered schedule known as a parenting plan.
When only one parent is awarded legal or physical custody, it is referred to as sole custody or primary custody. The parent with sole physical custody is the custodial parent, and the other is the noncustodial parent. However, sole physical custody typically doesn't mean that the noncustodial parent has no time or contact with his child. He has visitation or parenting time rather than custody.
Best Interests Standard
When deciding issues of legal and physical custody, courts use the best interests standard. Judges are required by law to ensure that custody decisions promote the child's interests, even when they conflict with the parents' interests. Each state has its own set of factors that courts consider when making this determination, but they usually include which parent is in the best position to promote the emotional, physical and psychological well being of the child.