There has recently been a great deal of confusion concerning physical and legal custody of children upon divorce. At the conclusion of a divorce proceeding, parties commonly come to a stipulation or agreement where they will share both physical and legal custody of children, but rarely do they know what they are exactly getting into. Hopefully, this will help to clear up some confusion.
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There are several arrangements with child custody:
Exclusive custody (“legal and physical)
This is where one parent has the right to make decisions regarding the child’s residence, health, education and welfare. The non-custodial parent has reasonable visitation rights.
Sole physical custody
This is where the child resides with and is supervised by one parent, subject to the other parent’s reasonable visitation rights. Although one parent is the sole physical custodian, the other parent still has decision making power about how the child should be brought up. (ie: whether child should attend public or private school, whether child should be brought up Christian or Jewish, and etc.)
Sole legal custody
This is where a parent has the exclusive right to make decisions regarding the child’s health, education and welfare. This however is normally ordered along with exclusive physical custody to one parent.
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Under this arrangement, neither parent has sole physical or legal custody. Both have the authority to control and supervise the child, and the child’s presence is shared.
Joint legal custody
In this case, both parents share the right to make decisions regarding the child’s health, education and welfare. Joint legal custody may be granted without granting joint physical custody (see below). In some instances, the court will order joint legal custody, but sole physical custody to one parent. The child shall reside with and shall be under the supervision of the physical custodian.
Joint physical custody
Joint physical custody is awarded when each parent has significant periods of physical custody. Child must have frequent and continuous contact with both parents in such a custody arrangement, but this doesn’t mean that custody must be equally shared.