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Custody: Legal and Physical

There are two types of custody: Legal Custody and  Physical Custody

Decisions involving your child’s health, safety and welfare, fall under the umbrella of legal custody.

Decisions involving where and with which parent your child will be residing, falls under the umbrella of physical custody. Physical custody is exercised through the implementation of a visitation schedule or co- parenting plan.

LEGAL CUSTODY
In most cases courts will order joint legal custody. Joint legal custody gives parents the pleasure of making important choices effecting their child’s health, safety, education and welfare together. It is extremely rare for a court to grant sole legal custody. Sole legal custody is usually only granted when the other parent is incarcerated, has a history of drug or alcohol abuse, has been an abusive parent, or has simply abandoned the family. However, even when such facts are present, each case is unique and must be analyzed on a case by case basis.

It is always in the child’s best interest for both parents to take an active part in making decisions regarding the child’s welfare. Some of our clients find that they are unable to work with their spouse, yet the situation does not merit sole legal custody. In such cases we have choices; for example, we can outline exactly which decisions will be made by each parent and incorporate our “tailor-made” definition of legal custody into the final order. Alternatively, the parties can agree to attend counseling or parenting classes.

There are several tools the court can use to determine the best interest of the child. Three powerful tools are 730 Evaluations, (when the court appoints a psychologist to evaluate the situation) appointment of Minor’s Counsel, (when the court appoints an attorney to represent the child) and expedited Child Custody Investigations. The court will almost always order a 730 Evaluation or appoint minor’s counsel in cases involving parental alienation syndrome or in cases where one parent wants to move to a different state or country with the child.

PHYSICAL CUSTODY
Physical custody involves more of the day to day decisions a parent has to make for their child. Physical custody is exercised through the implementation of a visitation schedule or parenting plan.

In most cases, even if one parent has physical custody of the children for a higher percentage of time, courts will use the label “joint” physical custody. The trend is to move away from a “win/lose” model of thinking, to a new model of thinking where both parents, and most importantly the children, are the winners. We empower our clients to think in terms of creating a unique parenting plan that will work for them and their children. Please see the section on visitation for more details.

Please call us if you feel you might be facing a custody battle. We can tell you what actions you should be taking now in order to prepare a compelling case.