Can I Have Joint Custody When the Mother Has Primary Physical Custody?

By Christine Funk, J.D.

Can I Have Joint Custody When the Mother Has Primary Physical Custody?

By Christine Funk, J.D.

Are you wondering if you can have joint custody when the mother of your child has primary physical custody? If so, the answer to your question can be summed up with two words: it depends. Child custody may be determined as part of a court battle, an amicable divorce settlement, or it may be determined by agreement or court battle by two parents who were never married. There are two distinct types of custody that parents are awarded in a child custody case: physical and legal.

Father and daughter reading a book together while lying on the floor

Understanding Physical Custody

"Physical custody" refers to which parent has custody of the child. It is becoming increasingly common for parents to share physical custody. This is referred to as “joint physical custody." Less common is when only one parent has physical custody. This is referred to as “sole physical custody."

“Primary physical custody" refers to a third type of custody, where one parent has the child more often, but the other parent has rights to parenting time with the child. In some families, child custody alters between the parent every other week, or every few days. However, based on job commitments, living arrangements, and other factors, in some families one parent has custody of the child during the school year and the other parent has the children during the summer. The parent who has the child for the longer school year is considered the parent with primary physical custody. But the other parent also has physical custody of the child for significant periods of time.

Understanding Legal Custody

“Legal custody" has a different function than physical custody. When someone has legal custody of their child, they are responsible for making decisions about significant life events the child may encounter. This can range from the schools the child attends, the medical care they receive, which dentist they visit, and which religion they are raised in.

Many parents are awarded joint legal custody, where both parents are responsible for making these decisions together. Some divorce decrees will also address who has the final say if the parties don't agree. Other divorce decrees call for mediation before the parties return to court to ask a judge to make a legal decision about what is in the best interests of the child.

Joint legal custody is usually a good idea in cases where the couple can work together and place their child's interests first. Unfortunately, not all couples are able to set aside their differences to make decisions together about their child's best interests. In those situations, the court may award legal custody to one parent. This is called "sole legal custody."

Separate Decisions

Deciding who gets physical and who gets legal custody are separate decisions. Of course, if one parent has a pattern of abuse towards the child, the court may be inclined to award sole physical custody and sole legal custody to the other parent.

However, in most situations, if the couple can work together to parent their child, courts are inclined to consider other arrangements, including joint physical and joint legal custody.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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