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

By Elizabeth Rayne

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.

Legal Custody

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.

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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.

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Moving Out of State and Joint Custody
 

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What Does Permanent Custody Mean?

One of the biggest issues couples with children face during a divorce is who gets custody of the children. Many states have adopted gender-neutral custody laws. This negates the age-old “tender years” doctrine, which dictated that the mother is generally the party best suited to provide permanent care for young children. Because gender is no longer a factor in most custody disputes, courts must examine other aspects of each parent's life when settling custody disagreements.

What Is the Meaning of Primary Custodian?

When the word primary is used in connection with custody, it usually relates to physical custody – which parent your children will live with after your divorce. The primary parent or custodian has possession of the children the majority of the time, but different states use various terms for dealing with this legal concept.

How to Get Full Custody in the State of Alabama

A fight over child custody is often immensely stressful for both parents and children. Alabama recognizes two types of custody -- legal and physical. Legal custody refers to which parent has decision-making responsibilities for the child, while physical custody refers to where the child lives. In the state of Alabama, in an effort to foster ongoing contact between parent and child, there is a presumption in favor of joint legal and physical custody. Joint custody does not, however, necessarily mean that both parents have the same amount of time with the child. Before seeking full custody of your child, think about whether this is truly in your child's best interests.

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