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What’s the difference between legal and physical custody?

| Mar 4, 2020 | Child Custody

When a couple with children decides to breakup, one of the first questions on the parents’ minds may be, “Who gets the kids?” In the state of Pennsylvania, as well as in most other states, this question generally doesn’t have a simple answer.

There are generally two separate decisions that need to be made when it comes to child custody. The first is physical custody, or determining where the child will live. In some cases, the courts may award one parent primary physical custody, meaning that the child will primarily reside in his or her home and he or she will be mainly responsible for caring for the child on a day-to-day basis. However, nowadays, many courts are in favor of shared physical custody whenever possible, in which the child gets to live with each parent 50 percent of the time.  In Pennsylvania we live in a Shared Custody State.  There is a presumption that the parents should share the children on a schedule that fits the needs of the family.  The court applies 16 factors to determine the schedule if the parties can’t agree on one themselves or through negotiations with their attorneys.  These 16 factors are required to be analyzed by the Court before they issue a Custody Order.

Child custody arrangements require more than figuring out where the child will primarily live. In addition to physical custody, the court will also make a decision regarding legal custody. If a parent is granted legal custody of a child, that means that he or she will be responsible for making all major decisions involving the child. These decisions may include determining what school the child should attend, what religious beliefs the child should be raised with, and what type of health care the child should receive. As with physical custody, one parent can be granted sole legal custody, or both parents may share legal custody.  That means that they must make decisions jointly and agree.  Sometimes the judge will give one parent sole legal custody on school choice or on medical decisions.  However even if one parent has sole legal custody, they still must include and notify the other parent of those decisions.

Determining physical and legal custody can be difficult for many Pennsylvania parents. An attorney specializing in family law and divorce can help you and your ex come up with a plan that serves your child’s best interest.  In the Custody area the best approach is to hire an attorney with experience and knowledge in Custody law and procedure.  There are also differences in how to file, depending on what County you live in.  If you need to file for custody, find an attorney who specializes in Custody litigation and meet with them to fully explain the facts of your case before you proceed.

In most counties in Pennsylvania there are procedures for the parents to mediate a schedule together before proceeding to litigation in front of a judge.  These procedures enable the people who know the children best to try to come up with an agreement before lawyers and judges get involved.  If no agreement can be reached, an experienced attorney will be able to counsel you on which of the 16 factors apply to your case, the primary focus being on the best interest and needs of the children.