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  • Sep 18th, 2023

    Legal Vs Physical Custody: Understanding the Types of Child Custody

    Child Custody, Preparation

    Understanding the Different Types of Child Custody

    “I want sole custody” is a phrase I hear almost every day.  Often, people outside of the legal world do not know what that means, so I am going not try and break it down for everyone. 

    There are two different types of custody in Missouri, for instance: Legal Custody and Physical Custody.  Each can be either joint custody or sole custody.

    What is Child Custody?

    Before we get into the difference between Legal and Physical Child Custody, we want to make sure you understand what Child Custody is.

    Child custody is the responsibility and legal rights granted to parents by the courts. Typically, child custody cases take place after a divorce or separation or after a child is born and the parents are not married (or together). The most common aspects involved in child custody cases include things like guardianship, where the child will live, how time will be split between the parents, and the financial responsibilities involved.

    There are different types of child custody arrangements, including legal custody and physical custody.

    Who Determines Child Custody?

    The specific child custody arrangement is determined based on various factors, including the child’s or children’s relationship(s) with the each parent and both parents’ current status relating to work-life balance and finances.

    Ultimately, the court’s goal is (or should be) to do what is best for the child while also making sure both parent is treated fairly. Things like physical abuse, substance abuse, or neglect will obviously have a negative impact on a parent’s chances of custody.

    What is Legal Child Custody or “Legal Custody”?

    Legal custody assigns which parent or guardian will get to make major decisions for the children. 

    This may include non-emergency surgery, choice of medications and doctors, decisions regarding education, and in some circumstances, what activities the children participate in. 

    You do not get to dictate what happens at the other parent’s home just because you have sole legal custody. 

    This is for major decisions only.

    If you are awarded sole legal custody you still have an obligation to try and reach an agreement with the other parent

    It just means that if no agreement can be reached, one parent can make the decision.  Sole legal custody does not give you the right to cut the other parent off or keep them away from doctor appointments and school.  It simply says that if there is no agreement, parent X gets final say.  

    The most common Order in child custody cases is joint legal custody. 

    This means that the parents must reach an agreement on major decisions. 

    Each parent makes their own day-to-day decisions in their household, but for big decisions, the parents need to come together and reach an agreement (just like married parents do). 

    If an agreement cannot be reached, most parenting plans call for a dispute resolution procedure to occur.  

    The Court, in some cases, will award sole legal custody to a parent, but usually only after a showing that the parties have such a significant breakdown in communication that it is not in the best interest of the children to put decisions on hold until the parents can go through a dispute resolution procedure. 

    These are rarer than you think, as taking away a parent’s right to have equal input on the child’s upbringing is a major reduction in rights. 

    The default is usually joint legal custody, and it will take some work to sway a Judge away from that.

    Related: The Most Commonly Used Parenting Plans

    What is Physical Child Custody or “Physical Custody”?

    There are several versions of “Physical Custody”, but the most common is Joint Physical Custody

    This does not mean that it has to be 50/50 parenting time, only that a parent is going to have significant time with the children at their home. 

    What is Joint Physical Custody?

    If you are doing joint physical custody, the Court will also designate one parent’s address for the children for mailing and education purposes (i.e. what school the children attend based on the address).  

    What is Sole Physical Custody?

    The other option is that a parent has “Sole Physical Custody to (Mother/Father) and Visitation to (Mother/Father)”. 

    In other words, sole physical custody is when a Mother/Father has physical custody and the other Mother/Father has visitation rights.

    This could also be “supervised visitation” to a parent, which means that the Court will Order that a parent’s time with their children is supervised by someone, and usually spells out who that person is. 

    If you are doing supervised visitation, there should be no overnights with the parent who has supervised visitation. 

    If you have sole physical custody, your address will be used for mailing and educational purposes for the children.  

    Sole Physical Custody vs Joint Physical Custody

    The major difference between Joint Physical Custody and Sole Physical Custody with Visitation is not much in the initial Order. 

    Parents can have nearly equal time and one parent can get sole physical custody. 

    The major factor, and why you may want to fight for this, is that if a Motion to Modify is ever filed to change the parenting plan, you need to show that there has been a material and continuing change in circumstances for the children or the parent that has physical custody.  

    If you have joint physical custody, then a change for either parent would qualify. 

    However, if a parent who does not have physical custody has a continuing and material change in circumstances, the Court should not modify the parenting plan based upon current statutes. 

    So, the big deal, and the main reason to fight for joint physical custody rather than just visitation, is preparing for future modifications more than anything.  

    The Most Common Child Custody Ruling

    The reality is that the Court, in most cases, is likely going to enter joint legal custody and joint physical custody (with someone’s address designated for mailing and education purposes for the children). 

    Sole legal is a pretty big hurdle, and more and more child custody attorneys are fighting for joint physical custody, even when their client only gets a few nights every two weeks. 

    If you want to fight for sole legal or residential custody, you need to be sure the Court knows why you are asking for this, and be ready to argue why this is in the child’s best interest.  

    If you would like to know more about the types of custody or have any questions, please feel free to contact the St. Louis family lawyers at Haefner Law Office at 314-200-6101 for a free 30-minute phone consultation where we can dive into the facts of your matter and see what type of custody you should be asking for. 

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