Do Both Parents Need to Live in the Same State to Have Joint Custody?

By Christine Funk, J.D.

Do Both Parents Need to Live in the Same State to Have Joint Custody?

By Christine Funk, J.D.

Both parents do not have to live in the same state to have either joint legal or joint physical custody. It is important, however, to understand the differences between the two types.

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Joint Legal Custody

In divorce cases, "legal custody" refers to the obligation of making important decisions about the child's life, welfare, and well-being. These may include extracurricular activities, medical treatments, where the child goes to school, and whether the child is raised in a particular religion.

If parents can work together for the good of their children, they may be awarded joint legal custody. If it is apparent that the parents cannot make legal decisions together, one parent may be awarded sole legal custody, giving them the right to have the final say in all decisions about the child's welfare and well-being.

Joint Physical Custody

“Physical custody" refers to the parent who has possession of the child. States differ in their approach, but many states recognize parents do not have to split parenting time 50/50 in order to share joint physical custody. For example, in a case where the parents live in different states, one parent may have physical custody of the children during the school year, while the other parent has physical custody of the children during the summer months, and during long holidays that reflect the school calendar. Parents do not need to live in different states for this custody arrangement to work for them.

Sometimes, however, parents who live in different states still manage to share the joint physical custody of the child equally, if the parties are so inclined. States, after all, have state boundaries that are easy to cross. If one parent lives in western Wisconsin, and the other lives in eastern Minnesota, there is no law that would prohibit them from doing so.

Another way to handle physical custody is to award one parent sole physical custody. In this situation the parent without physical custody is still permitted visitation with the children. The nature of the visitation schedule is determined by the parties, bearing in mind the best interests of the children. Most states recognize that maintaining a good relationship with each parent is part of what is in the best interests of the child in most cases. Barring some sort of abuse, courts are not likely to award sole physical custody without any visitation rights for the noncustodial parent.

Decisions about Legal Custody and Physical Custody

Courts make custody determinations based on the best interests of each child. As such, it is possible for one parent to have sole legal and sole physical custody. However, it is also possible for one parent to have sole legal custody, while sharing joint physical custody.

Similarly, the parents may share joint legal custody, but one parent retains sole physical custody of the child. Finally, some parents are awarded both joint physical and joint legal custody. Every divorce is different.

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