The difference between legal and physical or residential custody is quite simple. The parent with whom the children reside more than 51{d7ad8d91dcbc6c5f909cae8a9a63c8e9cbd63938c628b2b59a791ba818aca75d} of the time is deemed to be the physical custodial parent or the residential custodial parent. The issue of legal custody does not have to do with time with the child; it has to do with the joint decision-making or individual decision-making. If the parties have joint legal custody, they must both agree on the major issues, what is known as health, education, and welfare, where the child goes to school, what religion the child will follow, what doctor, what medications the child will see or take, and ultimately, if only one party has legal custody, or particularly put, one party has physical and legal custody, that party decides all the major issues and all the issues concerning the child, while the other spouse has merely the right to visit.

The process of deciding who gets custody of the children happens during the divorce process and considers a variety of factors that will determine which parent has residential custody. If the two parents can’t decide which parent will be the residential custodial parent, they will have to bring the matter to court and the judge will decide which parent is more suitable to have the most custody of the children. The judge’s primary concern for who the child will spend more time with is as a result of which party is more inclined to the best interest of the child.

If you are in need of legal counsel, please contact The Penichet Firm and we will be happy to assist you in your family and criminal law matters.