The Differences Between Legal Custody and Physical Custody

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Legal Custody

“Legal Custody” or “Joint Legal Custody” is a legal principle in which the court grants one or both parties the right to make decisions that affect the minor child. In most situations, the court will grant the parties Joint Legal Custody of the minor child, even if one party has the child in their physical custody the majority of the time. However, when one party has sole Legal Custody of the minor child, that party has the complete authority to make unilateral decisions that affect the minor child. The sole legal custodian is free to decide educational issues, medical issues, religious issues, etc. without consulting the other party. The court will award a single party sole Legal Custody when it can be shown that the other party’s decision-making ability or conduct is so poor that the party should not be trusted with the responsibility of making decisions for the minor child. In practice, the courts are hesitant to order sole Legal Custody.

When both parties share Joint Legal Custody, which is the usual the order of the court, the parties need to work together cooperatively in making decisions that affect the minor child. For instance, if the minor child’s dentist says “I can go either way as to whether your child needs braces”, then one party cannot unilaterally make that decision without cooperatively getting the agreement of the other party. If a child needs after-school tutoring or needs to see a psychologist, the decision to employ such services must also be made cooperatively. However, if a child breaks his arm and the E.R. doctor says they need to perform immediate services on the child, then the party who took the child to the hospital is free to authorize the performance of medical services. If the E.R. doctor then wants to refer the child for a follow-up orthopedic consultation in which possible surgery is being discussed, then Joint Legal Custody requires both parents to have the opportunity to be at the doctor’s appointment, and then to cooperatively reach a decision as to which course of action to take.

Physical Custody

Physical Custody is defined exactly as it sounds. Where will the child be physically spending their time? In recent years many courts have moved away from specifically designating one party or the other as the “physical custodian”. Rather, the court will often rely on a parenting time order or schedule to describe which parent has physical custody of the minor child at a particular time.

The Parenting Time Agreement is a critical part of any divorce settlement. After a period of negotiation, sometimes with the assistance of a mediator, the parties will reach a custody agreement which, if well-drafted, will spell out each and every detail of the “where’s and when’s” that affect the child. A well-drafted Parenting Time Agreement will address:

• All holidays such as Christmas, New Years, Easter, Hanukkah, etc.
• The minor child’s birthday and sometimes even each parent’s birthday
• All school breaks.
• Summer vacation
• Mother’s Day and Father’s Day
• Religious events
• After-school events
• Transportation of the minor child to and from visitation
• Etc.

The Parenting Time Agreement should be very, very detailed. It is the road map under which all visitation takes place. It will prevent future misunderstandings. Of course, even if the Parent Time Agreement is super detailed, it will not prevent the parties from agreeing to minor modifications as time goes by. For instance, the Parenting Time Agreement might specifically state that one party will pick up the minor child at 5 P.M. on Friday and return the child at 9 P.M. on Sunday. However, over time the parties have come to casually agree to the minor child being picked up directly from school at 3:10 on Fridays. Such a casual agreement is certainly allowable. The court very much encourages all parties to exercise such flexibility and reasonableness. However, where there is disagreement, the well-drafted Parenting Time Agreement will make the where’s and when’s crystal clear.

The Contested Child Custody Case

Court cases in which the issues of who will have custody of the minor child are, without a doubt, among the most expensive and mentally exhausting of all types of legal cases. Judges will oftentimes work tirelessly to get the parties to work on a compromise solution, thus preventing the prospect of a nasty and contested trial. Unfortunately, in a small percentage of cases, trials centered on the issue of custody do take place.

If a trial centered on custody is held, then the court is required under Michigan law to consider what the “best interests” of the minor child are. The judge is required to make her custody decision on what is called the “Best Interest Factors” or the “Child Custody Factors”. Many times, one party will say “well, she says she wants to live with me.” The child’s preference is certainly important, but it is not the sole determining factor. Here is a basic description of the Best Interest Factors:

• The love, affection, and other emotional ties existing between the parties involved and the child
• The capacity and disposition of the parties involved to give the child love, affection, and guidance, and to continue the education and raising of the child in his or her religion or creed, if any
• The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity
• The permanence, as a family unit, of the existing or proposed custodial home or homes
• The moral fitness of the parties involved
• The mental and physical health of the parties involved
• The home, school, and community record of the child
• The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference
• The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child
• Any other factor considered by the court to be relevant to a particular child custody dispute

The court looks at each and every one of these factors and then decides if one factor weighs more heavily in favor of one party over another. The court may even make a grid sheet or checklist showing which particular factor is scored in favor of one party over another. For instance, if one party is very stable and the other party has had a string of live-in boyfriends or girlfriends, it's possible that the court could score factor (f), the moral fitness of the parties, in favor of the more stable party. If the court receives evidence that one party has been trash-talking the other party to the minor child, then the court may score factor (j), the willingness to foster a close relationship with the other parent, against the trash-talking party. If one party has been evicted from their home due to foreclosure or non-payment of rent while the other party has resided for a long period of time in a single location, then the court may score factor (c), the ability to provide for the child, in favor of the more stable party.

It is a sad but true fact that the Best Interest Factors are a scorecard under which parents are judged. It is an unpleasant process at best.