What’s The Difference Between Primary Physical Custody And Sole Legal Custody?

Primary Physical Custody vs. Sole Legal Custody

Divorce brings many challenges, especially when it comes to determining child custody. Understanding the differences between physical and legal custody and how states like California approach these issues is crucial for parents. California law recognizes sole (primary) physical custody, where one parent has the main responsibility for the child, and shared custody, highlighting the importance of the child’s best interests in such arrangements. Custody decisions involve various factors, including each parent’s ability to care for the child and the potential need for supervised visitation. Navigating these complexities often requires the assistance of an experienced family law attorney to ensure the best outcome for your child and you.

Dividing parenting responsibilities is one of the most significant challenges of getting divorced.   One of the first things that have to be determined is whether one parent will have sole custody physical custody of the children, or if custody will be shared between parents. While each state makes a distinction between physical and legal custody, the applicable laws vary from state to state.

Here’s a summary of how a few states approach these matters:

• California: Focuses on creating a parenting plan that outlines custody details, which must be in the child’s best interests for court approval.
• Colorado: Replaced the traditional term “child custody” with “parental responsibilities” in 1999.
• Georgia: Allows children aged 14 and older to choose which parent to live with, though the court can override this decision if it’s not in the child’s best interests.
• Massachusetts: Generally does not consider the child’s wishes in custody matters.
• Texas: Parents may file a proposed parenting plan with the court. If not filed, the court will decide on a custody arrangement.

What Does Primary Physical Custody Mean?

In California, sole physical custody is also called primary physical custody. With sole custody, the child only lives with one parent, while the other parent may have scheduled visitation or parenting time. Once the court gives sole physical custody to one parent, that parent has the right to control the physical care of the child without the need to ask the other parent. Once sole legal custody is ordered to one parent, that parent also has the right to make all other decisions over the child’s life, without the other parent’s approval.

Sole physical custody positively has advantages for a parent that has that order. Advantages like a sole physical custody order give that parent a circumstantial right to move with the child. Now that does not mean that parents can simply take off with the child whenever he or she wants. The court has the power to handle a parent’s move.

CA Family Code 7501 states:

(a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.

(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.

The Burgess Decision

The In re Marriage of Burgess (1996) 13 Cal.4th 25 decision by the California Supreme Court addressed the circumstances under which a parent with physical custody of children may relocate their residence. Specifically, the case questioned whether a custodial parent intending to move must prove that the relocation is “necessary” to be awarded physical custody of the children.

The Supreme Court’s decision clarified that custodial parents seeking to relocate do not need to demonstrate that the move is “necessary.” Instead, it shifted the burden of proof, establishing that once the custodial parent shows the move is not intended to frustrate the other parent’s visitation rights and is for a legitimate purpose, the non-custodial parent must then prove that the move would be detrimental to the child’s best interests.

This ruling was significant because it addressed and resolved conflicts in the Courts of Appeal regarding “move-away” cases, where previously, some decisions imposed an additional burden on custodial parents to prove that relocation was essential, expedient, or for an imperative reason. The Burgess decision disapproved of these requirements, aligning with the view that such decisions should primarily focus on the best interests of the child without imposing unnecessary burdens on the custodial parent.

Moreover, the decision mentioned considerations for cases where parents share joint physical custody, indicating that in such instances, the custody order may be modified based on what is in the best interest of the child, necessitating a de novo (from the beginning) examination of the custody arrangement.

This case is pivotal in California family law as it establishes a framework for handling custody disputes involving relocation, emphasizing the child’s welfare and the practical realities facing custodial parents post-divorce or separation​

Noncustodial Parent

The noncustodial parent still maintains the right to communicate with the child frequently as a result of his court-approved visitation. The noncustodial parent can lose these parental rights in certain situations like due to a prolonged absence from the child’s life or child abuse. 

Sole Physical Custody with Sole Legal Custody

A parent with sole physical custody and sole legal custody holds exclusive rights to take care of the child physically and to legally make important decisions that perform the child’s safety, health, and welfare. The court must consider the best interest of the child before it awards sole physical custody or sole legal custody to one parent.

The parent has the right to control the physical care of the child without the need to discuss it with the other parent. Once sole legal custody is allowed to one parent, that parent also has the right to make all other decisions over the child’s life, without the other parent’s approval.

Sole custody may be preferable when one parent:

• Is addicted to drugs or alcohol
• Suffers from a mental or physical disability
• Has a history of domestic abuse
• Travels often and can’t provide a steady home for the child
• Is visibly absent from the child’s life

Sole custody can also be useful when two parents do not live near one another after a divorce, and It wouldn’t be fair to the child to require them to live half of their life in one state and half of their life in another.

Does Sole Custody Mean that the Non-Custodial Parent Nevermore Sees Their Child?

No, visitations can be supervised or unsupervised. Supervised visitation means that a parent cannot waste time with their child alone. Another person must be present to make sure that the child is secure and that the visitation time is beneficial. Supervised visitation may be necessary when sole custody is granted due to concerns about a parent’s ability to care for their child safely.

Sole Physical Custody with Shared Legal Custody

The shared legal custody means that both parents share the right and responsibility to make decisions relating to the health, education, and welfare of a child.  Part of legal custody includes the right to make decisions over religious upbringing.

Parents typically share joint legal custody, unless one of the following is true:

• The parents are completely unable to make decisions together one parent is deemed unfit
• One parent is incapable of making decisions regarding the upbringing and general welfare of the child, or it would be in the child’s best interests for one parent to have sole legal custody.

Courts will always support parents to find a way to make a shared custody plan work. But there are times when allowing both parents to share legal and physical custody is not in the child’s best interest. This happens when there is evidence to insinuate that a parent would not be physically, emotionally, or psychologically fit to take care of their child.

FAQs on Primary Physical Custody

What are the benefits of being the primary parent?

Being the primary parent means having the child primarily live with you, offering stability and consistency in their daily life. It allows for a deeper involvement in the child’s everyday activities, schooling, and health decisions.

What is primary physical custody in Texas?

Primary physical custody in Texas refers to the arrangement where the child primarily resides with one parent, known as the custodial parent. The other parent is typically granted visitation rights.

What custody arrangement is best for a child?

The best custody arrangement for a child is one that ensures their well-being, stability, and continuous relationship with both parents. Joint conservatorship, where parents share decision-making responsibilities, is often preferred unless factors like family violence suggest otherwise.

What states have the best fathers’ rights?

States with strong fathers’ rights typically ensure equitable treatment in custody decisions, focusing on the child’s best interests rather than the parent’s gender. Texas, for example, does not give preference to either parent based on gender.

What does a 70/30 split look like?

A 70/30 custody split means the child spends approximately 70% of their time with one parent and 30% with the other. This can provide a stable home base with the primary parent while maintaining a significant relationship with the other parent.

What type of custody is most common?

Joint conservatorship or joint custody, where both parents share decision-making responsibilities for the child, is common. However, the specific living arrangements can vary, with one parent often being the primary physical custodian.

Why are mothers more likely to get custody?

Historically, mothers were more likely to get custody due to traditional roles and the “tender years” doctrine. However, modern courts focus on the best interests of the child, with no legal preference for mothers over fathers.

Who gets custody most often?

Custody is typically awarded based on the child’s best interests, with courts considering factors like each parent’s relationship with the child, stability, and ability to meet the child’s needs. There’s no predetermined preference for mothers or fathers.

What is the least common form of custody?

The least common form of custody is split physical custody, where siblings may live with different parents. This arrangement is rare and usually based on specific family circumstances or the children’s preferences.

What defines a primary care parent?

A primary care parent is the one with whom the child primarily resides and who is responsible for the day-to-day care and decision-making regarding the child’s well-being​​.

What are the cons of co-parenting?

Co-parenting challenges include coordinating schedules, maintaining consistent rules and discipline across households, and managing ongoing communication between ex-partners, which can be stressful and complex.

Why is shared custody important?

Shared custody is important because it allows the child to maintain a meaningful relationship with both parents, contributing to their emotional stability and sense of family unity post-divorce.

For specific guidance and detailed legal advice, consulting a family law attorney is recommended.