By FindLaw Staff | Legally reviewed by Hal Armstrong, Esq | Last updated November 24, 2021
When two parents are going through a divorce, a lot of legal terminology gets thrown around, and much of it may be unfamiliar. One phrase you've probably heard is "physical custody." But how many people know what that really means in a legal context? It's important that both parents understand what terms like this mean and how they can be bound by their custody agreement.
The following provides a general overview of physical custody and what it means in the larger context of custody disputes.
In the course of a divorce, your state's child custody laws come into play. A family court judge will determine various aspects of how the division of care for any children will be carried out. The court determines which parent should have physical custody of the child, and that parent will be responsible for providing care for the child on a daily basis.
That almost always means that the child will live with the parent that has physical custody.
Most modern custody arrangements give primary physical custody to one parent (called the "custodial" parent) and grant visitation rights (also called "parent time" in some jurisdictions) and shared "legal custody" to the non-custodial parent. Typically, visitation rights give the non-custodial parent exclusive time with the child every other weekend, alternating major holidays, and a number of weeks during summer vacations. Keep in mind that most states also grant certain visitation rights to grandparents as well.
In some situations, however, one parent is given sole custody. When a court gives a parent sole custody, the parent is given exclusive physical and legal custody of the child.
Sole custody is typically only given when the other parent is found unfit or incapable of taking care of the child. Examples include abuse, drug addiction, and criminal behavior.
In the case of sole custody, the other parent may still be allowed some visitation, though it will be much more limited than in a shared legal custody/physical custody arrangement.
Keep in mind, most states prefer awarding joint or shared custody based on the best interests of the child. For instance, the court will consider the intangible but extremely important emotional bonds between a child and their parents, in addition to the more tangible needs like financial stability.
Mother and Father have divorced, and share legal custody of Child, while Mother is given primary physical custody of Child. This usually means that Mother and Father share equally in making important decisions concerning Child's upbringing, but Child lives with Mother for the majority of the time.
As in most cases where one parent is awarded primary physical custody, Father is given visitation rights as the non-custodial parent — entitling him to exclusive time with Child every other weekend, on alternating major holidays, and for four consecutive weeks over Child's summer vacation.
Recognizing that it is generally in the best interests of the child to have a strong relationship with both parents, courts are open to custody and visitation/parent time arrangements that provide for more time with the non-custodial parent, particularly where the parties are able to agree and co-parent cooperatively.
Physical custody -- where a child lives and whether the child is split between the parents -- is always a difficult and emotionally challenging determination. An experienced attorney will know how to work with the court to get the best possible outcome for your child. Get started today by finding a family law attorney near you with experience handling such matters.
Contact a qualified child custody attorney to make sure your rights are protected.
Get tailored advice and ask a lawyer questions. Many attorneys offer free consultations.