The divorce rate in the US is declining but remains at approximately 2.7 divorces per 1,000 people.

The birth rate in the US is also down. The most recent data from the CDC showed a less than 1% increase in the general fertility rate. There were 5.46 births per 1,000 females ages 15-44.

Fewer divorces and births mean fewer children of divorce. Reaching a proper custody agreement remains essential to their well-being.

Read our comparison guide to legal custody vs physical custody arrangements to learn their differences and how to succeed in your custody battle.

Legal Custody vs. Physical Custody

Children aren’t responsible enough to be in charge of every part of their lives, but they must also be allowed to be independent human beings. Thus, custody arrangements have specific limits.

Comparing legal custody vs. physical custody starts with comparing what they allow parents to take over. 

Living Arrangements

Physical custody details are all about where the child spends their time. It also determines who has the obligation to take care of them every day.

The child will live with the parent who has primary physical custody. When will they get to go see their other parent at their home? It depends on whether a joint or sole physical custody arrangement is reached.

Decision-Making Power

Legal custody gives a parent the right to make crucial decisions for the child. They cover areas such as:

  • Medical care
  • Childcare
  • Education
  • Extracurricular activities
  • Religious upbringing

Physical custody involves more everyday decisions. It involves choosing who the child lives with and how they spend their time.

Responsibilities

Having the decision-making power that legal custody provides is a major responsibility. Those choices could affect them in the long term.

Physical custody is also a major responsibility, but more in the short term. The parent must make daily decisions to ensure their child has enough food, water, and shelter.

Joint vs. Sole Custody

Legal and physical are the major custody arrangement types, but custody agreements go deeper than that. They can also be shared by both parents or given only to one.

Joint

Joint legal and physical custody is the typical “co-parenting” situation. Both parents have an equal say in major decisions and an essentially equal amount of time with their children. Courts tend to favor it because it’s less disruptive and helps maintain parental bonds, but it’s not the only option.

Joint physical custody means that the child gets to spend substantial time at both parents’ homes. That doesn’t mean an equal amount of time, however. They’ll have to work out a parenting agreement to set up a schedule.

Sole

Sole physical custody is a common arrangement. One parent receives primary physical custody, so the child lives with them. The other has secondary physical custody. They’ll also be allowed an agreed-upon level of visitation rights.

Sole legal custody gives decision-making power to only one of the parents. They’ll be given the final say if both parents can’t agree about an important decision.

Complete sole legal and physical custody allows only one of the parents to see and make decisions for the child. It’s a rare option and only granted in extreme cases where the child could be in danger. These may include domestic violence or addiction.

How Custody Decisions Get Made

The path towards custody decisions is known as a battle for a reason. It’s a long road full of emotionally-charged decisions.

Fighting can be avoided if the parents agree on how to raise their child. If not, the court battle begins.

Negotiation and Mediation

Negotiation is the first step in determining most child support agreements. They try to create an agreement that best serves the interests of their child.

Mediation is often used when they struggle to agree. A neutral third party, known as a mediator, can step in. They facilitate communication to reach an agreement that serves everyone.

Litgation

Child custody arrangements can become a battle that even the best mediator can’t smooth over. If mediation fails, the case typically proceeds to court through litigation.

Both parents must attend child custody hearings. If they have different opinions about what they think the final custody decision should be. They’ll also need an attorney and witnesses to speak on their behalf.

From there, it’s all in the hands of the judge. They’ll take everything they’ve heard into consideration and come up with an agreement that provides for basic child custody rights and serves the child’s best interests.

This complex decision includes factors like each parent’s health and the safety of their living environment. If the child has a preference as to which parent they want to be with, it may be part of the court decision. It depends on their age and maturity level.

Modifications and Enforcement

Parenting agreements are as imperfect as the parents who make them. They often need modifications over time. At the same time, structure and routine are crucial for a child’s development. The court won’t make major changes to a custody agreement unless absolutely necessary.

You may need an attorney for divorce modifications if family circumstances change, such as one parent moving far away. They can show that one of the parents’ living arrangements no longer meets the child’s needs.

Representation is also essential when a parent fails to follow the original custody terms. Your attorney will guide you through the process of petitioning the court to ensure that they comply. Enforcement could involve fines or adjustments to the custody agreement.

Get a Custody Lawyer Today

When comparing legal custody vs physical custody, the primary distinction lies in the responsibilities each entails. Legal custody gives a parent the right to make major decisions for their child. Physical allows them to decide where they live. The judge may also decide that these rights should go to only one parent or be shared by both.

Kearney, Freeman, Fogarty & Joshi, PLLC has over three decades of experience serving the Northern Virginia community.  We’re dedicated to providing knowledgeable representation for personal injury, criminal defense, and family law cases. Reach out to us today for an initial consultation.