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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Laws for Custody Battles in Kansas


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North Carolina Laws on Primary Custody and Average Child Support

While a divorce is a momentous change in the life of both parents and their children, North Carolina courts attempt to maintain some continuity when awarding child support. Ideally, a child support award provides children with the same support and lifestyle they had before their parents separated. With this in mind, courts will consider the income of each parent as well as which parent has primary custody of the children. The support payment is based not only on the ability of each parent to pay support, but also the needs of the children.

Moving Out of State and Joint Custody

Joint custody is an arrangement in which both parents remain involved in their child's life. As a result, courts are more likely than ever before to grant either physical or legal joint custody. Moving out of state can complicate joint custody arrangements and a parent may need a court's permission for the move. Some parenting plans establish a specific procedure for the parent to follow.

How to Determine Who Will Win Child Custody

Child custody laws vary from state to state. Likewise, different jurisdictions have different preferences and guidelines for how to divide custody between divorcing parents. That said, mothers and fathers both have equal rights to obtain custody of their children. Courts will generally not assume that the child will fare better with a particular parent based on that parent’s sex. Likewise, either parent can file a motion for custody, either during a divorce or after a court has entered a custody order.

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