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 Legal Custody vs. Physical custody: What’s the Difference?

In understanding custody, it’s important to start with the basics. There are two different types of custody orders that a Court will make in relation to children: legal custody and physical custody. But what’s the difference?

Generally, the term legal custody refers to the authority to make decisions relating to the health, education, and welfare of a child. For example, decisions about what school a child should attend, whether they should attend church, or the ability to sign passport applications so that a passport may issue for a minor.

Physical custody refers to the person who has physical responsibility for a child. When the child is in their care, they are responsible for making day-to-day decisions, for example, what time a child should go to bed, what they will eat for dinner, how they will be transported to school.

Both legal and physical custody can be held jointly by both parents, or solely by one parent. In making an order for custody with respect to both parents, the court may grant joint legal custody without granting joint physical custody.

It is presumed that parents will have joint legal custody for their children unless it is not in the child’s best interest for it to be shared, for example, in cases where there has been domestic violence, substance abuse, or some other compelling reason.

Sometimes the circumstances of a case will justify an order where one parent may have sole legal custody for certain matters and the parents retain joint legal custody for all other matters. For example, an order may be made granting one parent sole legal custody for decisions relating to health, where the other parent has failed or refused to vaccinate their children in accordance with State mandated regulations, or does not agree for their child to see a counsellor when there is evidence that it is in their best interest to do so.

It is also generally presumed that parents will have joint physical custody of their children unless it is not in the child’s best interest for it to be shared. However joint physical custody does not always mean equal time sharing. Sometimes it is impractical for a child or children to live with each of the parents 50% of the time, and even if a child lives with one parent 60% of the time and the other parent 40% of time, referring to them as having joint physical custody means the term “visitation” can be avoided, which can have important psychological and emotional benefits to the parent and child. To have joint physical custody, both parents need to have “significant” time with the child.

Sole physical custody means one parent has the right for the child to live with him/her. The other parent may or may not have visitation rights.

Each case is unique. If you’re facing a child custody matter, you should contact an attorney to advise you of your rights such as the Family Lawyer locals trust.