Physical vs Legal Custody of Children

physical vs legal custody

When you decide to separate from or divorce your spouse, there may be some contentious issues to resolve. This is particularly the case if you have minor children and are having trouble agreeing on who should have custody.

When you divorce, custody of a child is broken down into two elements: physical and legal custody. While these may seem like the same thing, it’s not unusual for physical and legal custody to have a different arrangement. For example, parents might be awarded joint physical custody but not joint legal custody. This is common when children are of school age or when one parent lives a fair distance from the other.

What is Physical Custody of Children in Divorce?

Physical custody refers to a parent’s right to have minor children live in their home. This could be awarded when the children spend considerable time with both parents. Since the courts aim to do what is in the best interests of the children, they will consider a joint physical custody arrangement under certain conditions.

True joint, or equal, physical custody, works best when the parents live close to each other so that it lessens the stress on the children. If this cannot be achieved, one parent might have primary physical custody, and the other has generous visitation rights. When one parent is awarded primary or sole physical custody, they are referred to as the “custodial” parent, and the other parent is the noncustodial parent.

What is Legal Custody in South Carolina?

Legal custody refers to which parent is responsible for making decisions about important matters regarding the children and their lives. This includes issues related to where they will go to school and church as well as decisions about medical care and what extracurricular activities they will be enrolled in.

When you were married, you probably made these types of decisions as a unit. If possible, the courts often prefer that you continue to do so after your divorce. This is what joint legal custody means—even though one parent may be the primary caregiver of the children, both parents hold onto their rights to make important decisions about their upbringing and future.  Often, however, the court will appoint one parent as the primary joint custodian even though both parties are to discuss and participate in making major decisions.  The primary joint legal custodian often has tie-breaking authority if the parents can’t agree on a particular decision.  Sometimes joint legal custody is split with the parents dividing what areas they have tie-breaking authority over.  This is especially true when parents share true joint physical custody, or equal time.

Unfortunately, having joint legal custody of children doesn’t always work. Some couples are unable to agree on even the simplest decisions, or one spouse could use these matters as leverage over the other. When something like this happens, or there is other sufficient evidence to support a case, a family law judge may grant one parent sole legal custody of the children.

Other situations in which a judge might order sole legal custody are cases in which one parent is abusive or neglectful, or lives a significant distance from the children.

The Benefits and Challenges of Joint Custody Arrangements

When parents share joint custody of children—physical, legal, or both—they are encouraged to work hard on their co-parenting relationship to create the most loving and stable environment possible for their children. Joint physical custody requires a commitment to splitting time and keeping track of schedules for both parents and children. To be successful, it also necessitates that both parties have some flexibility with one another.

The biggest advantage of joint custody is that children continue to have as much contact as possible with both parents. This arrangement also allows each parent to enjoy some freedom of responsibility when the children are away.

There are also several disadvantages to joint custody. Maintaining two homes that are equipped to handle children can be expensive. Transportation costs can also add up if the parents don’t live near each other. Most importantly, any animosity or lack of cooperation between the parents can have a serious negative impact on the children.

Speak with An Experienced South Carolina Family Law Attorney

When you are facing divorce, one of the most terrifying aspects of the process could be how it will affect your children. Divorce is hard enough on the adults, but custody and support issues can have lasting effects on children if they are not resolved quickly and with as little grief as possible.

At The Cate Law Firm, we take your family law matters seriously and will use our experience to protect your rights and help you make a plan that considers the best interests of your children. Contact our compassionate and dedicated South Carolina family law attorneys now at (864) 585-4226 or reach us online to schedule a consultation.

Contact Form Tab