The Post-Divorce-Parenting Glossary

Divorced-Parenting Term

Legal Custody

What is legal custody?

Legal custody refers to the right granted by the family court for a parent to make significant, long-term decisions about their child's development.  The major decisions protected by legal custody often relate to the health, education, and religion.

What is an example of legal custody?

An example of using legal custody might be if a parent takes a child to the doctor, and the doctor finds that the child needs to have a procedure. The parent with legal custody of the child would be able to make the decision to allow - or disallow - that procedure to take place. When both parents have legal custody, known as joint legal custody, this decision would need need to be made mutually by both parents; one cannot act unilaterally.

How did the idea of legal custody come into existence?

The idea of legal custody arose out of repeated confusion and conflict between divorced parents about who was responsible for making major, long-term decisions on the children's behalf.  Parents would argue whether or not the parent that had more time with the children (the custodial parent) had complete authority to decide what is best for the children.  Having complete authority to make long-term decsions for the child is called sole legal custody.  Without defining and differentiating legal custody from physical custody, the only parent that would be able to make decisions on the children's behalf would be the primary custodial parent.  By thinking of child custody as being made up of two components (physical custody and legal custody), the courts have much more flexibility to do what they feel is in the children's best interests.

What is the difference between legal and physical custody?

The term legal custody differs from physical custody, in that, the types of decisions that are made are long-term vs. day-to-day.  This can be explained by something we call "the babysitter test".  Assume a parent leaves a child with a babysitter.  The babysitter would be expected to make certain decisions on the child's behalf.  They might decide what to make for dinner, whether to wear a jacket to go outside, what time to go to bed, and other "daily" decisions.  That is analogous to physical custody.

Now, apply to the babysitter test to legal custody.  Would a baby sitter be expected to make decisions about what religion the child should follow, what type of medical care is appropriate, whether to go to private or public schools, etc.?  That is legal custody.

Generally, if it would be inappropriate for a babysitter to make the decision, the decision probably falls in the realm of legal custody.

Why is it important to differentiate between legal custody and physical custody?

The reason that it is important to know the difference between legal custody and physical custody is because many child-custody arrangements involve joint legal custody.  This means the legal custody component of child custody must be shared with both parents.

Divorced parents should consult their divorce decree to determine how legal custody is defined in their court order.  Separated parents with a separation agreement may find legal custody defined in that document.  It should also be noted that legal custody is either 50/50 (joint legal custody), or it is 100/0 (sole legal custody).  Unlike physical custody, legal custody cannot be other percentages..

What are the different types of custody arrangements?

Both legal and physical custody can be arranged in different ways depending on the situation and what is determined by the court is in the best interest of the children. The following are ways in which legal and physical custody might be arranged:

Joint legal custody and joint physical custody
The joint legal custody component means both parents share rights to make significant decisions regarding their children's welfare and the children. The joint physical custody component of their child custody means that neither parent is considered the primary custodial parent or noncustodial parent.  Both are custodial parents, and the children would reside with both a significant amount of the time (not necessarily an equal amount).

Joint legal custody and sole physical custody
Again, the legal custody component gives both parents are considered equal with regard to the authority to make long-term decisions on behalf of the children.  The physical custody component grants one parent primary physical custody over the children.  This person is the custodial parent.  The other parent is called the noncustodial parent.  The noncustodial parent typically has visitation rights (i.e. parenting time).

Sole legal custody and sole physical custody
If a parent has sole legal custody, they alone are responsible for making long-term decisions on behalf of the children.  The other parent has no legal right to make such decisions on the child's behalf.  Also, the sole physical custody component of this child custody arrangement means that one is the custodial parent and the other is the noncustodial parent.  The noncustodial parent likely gets visitation (parenting time).

How can legal custody affect child support?

Child support is typically considered to be related to the physical custody component of child custody; however, there are instances where child support can be affected by legal custody.

As an example, assume a parent has sole legal custody, and that parent decides the children should attend an expensive private school.  The other parent, who is likely paying child support has no legal say in this matter, and the more expensive schooling could affect the child support calculation that the noncustodial parent is required to pay.

This is also one of the reasons why courts have moved to make joint legal custody the more common in child custody arrangements.  If both parents are not involved in the decision-making process on decisions like this, conflict can result.  Also, such issues lead to problems with unpaid child support.

What are family courts likely to do with regard to legal custody?

Generally speaking the preferred arrangement is joint legal custody, in which both parents have the responsibility to make these types of decisions.  Parents are encouraged to not only make the decisions autonomously but rather to make the decision together. If there are two parents who want legal custody of the children, most family courts will award joint legal custody.

How can parents work together when they disagree on something and both have legal custody?

Divorced parents sometimes wonder if they have to always agree on decision when they have joint legal custody.  Consider a married couple with children - a nuclear family.  These parents will not always agree, but because they have a system in place - however informal - where they are able to discuss and work through the best outcome that meets the expectations of each parent.  In a nuclear family, the parents likely respect one another so that neither is likely to become angry when every disagreement occurs.

For a divorced family, that is the level same of collaboration that is needed between parents with joint legal custody.  Each parent should assume that the other parent's wishes and values are just as important as their own.  Because the respect that parents have for one another may be significantly lower when they are divorced, disagreements on long-term decisions can lead to conflict.  High-conflict parenting is one of the biggest reasons that children of divorce are shown to suffer negative consequences later in life.

A parenting plan that addresses conflict resolution is very important for parents with joint legal custody.  It provides a framework for how parents will resolve issues that they do not agree on.  A good parenting plan can reduce conflict and save divorced parents a significant amount of money that might otherwise be wasted on litigation fees.

Why would a parent not be awarded legal custody?

While a court is likely to award joint legal custody in many cases, if the children's best interests are for one parent to not have legal custody, the court may do that, as well.  A court looks at:


  • the emotional state of the parent;
  • the mental state of the parent;
  • other issues that may prevent the parent from making rational decisions for the child;
  • the parent/child relationship quality;
  • how physical custody has been ordered;

In high-conflict divorces, parents may decide that fighting for sole legal custody is important to them. There are important facts to keep in mind before going to court for the purpose of attaining sole legal custody.  Courts are reluctant to award sole legal custody if both parents desire legal custody of the children.  Because court litigation is very costly, it is usually much more advantageous for everyone to spend those resources that would be spent on going to court on ways to improve communication.


Questions & Answers about Joint Legal Custody
Joint legal custody has many complexities that parents need to consider. This site address many of those considerations in a question and answer format. If you have a question about child custody types of your own, you can ask that and quickly get an answer. - Single Parents Child Custody Information
This article explains what types of decisions are part of joint legal custody, and pros and cons of joint legal custody.
Differences Between Legal Custody and Physical Custody Cases
This family law attorney explains the difference between legal custody and physical custody in depth.

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