Physical Versus Legal Custody

How Lawyers and Judges Determine Custody in Frederick, Maryland

Physical Versus Legal Custody: Physical custody describes the residence of a child and legal custody describes decision making.

Lawyers in Frederick are often called upon to describe to define Physical Custody in contrast to Legal Custody.

There are two types of custody with two variations upon the theme:

a) sole legal custody

b) joint legal custody

c) sole physical custody and

d)shared/joint physical custody.

Physical custody is easy. Physical custody is where your child hangs his or her hat. It has to do with things like, where is the child’s legal address for documents, school records, passports, learner’s permits etc. It determines when the child is with each parent.

If both of the parents have not less than 128 overnights with the child it is shared/joint physical custody.

Within the category of physical custody are two competing terms: “joint/shared” physical custody versus “sole” physical custody.

With respect to physical custody the terms “joint” physical custody and “shared” physical custody are interchangeable and simply have to do with the context.

For example:

If we are talking about child support and giving each respective parent credits for the time he/she has the child(ren) it’s called a “shared” custody child support guideline.

If we are talking about when the child(ren) are at each parent’s respective home, it’s called a “joint physical custody schedule” OR a “shared custody schedule.”

Either one is fine.

Legal custody is a little more ephemeral

Legal custody is defined as the right or obligation of a parent to make decisions respecting the medical, educational and religious welfare of the child. I have sometimes likened the distinction between legal and physical custody to the relationship between the owner of a car versus the finance company on the car. An owner operates the car. He can go fast or go low. He can even paint it with flames down the side. He takes the car home every night. But if the owner wants to sell the car he must have leave from the finance company.

When parents have joint legal custody the number of overnights does not matter. Whatever the physical custody arrangement.

Many years ago I handled a custody case in Frederick, Maryland Circuit Court where the father resided in Urbana, Maryland and the mother resided in Ijamsille, Maryland. The parties had separated years before the divorce and their son was living with father more often than with the mother.

The parents could not agree that rain was wet.

The judge became more and more impatient over the three days long trial. Each party felt the need to criticize each and every detail of the other parties parenting. Finally at the conclusion of the case the Frederick judge ordered the father in Urbana to have physical custody of the child but mother in Ijamsville to have legal custody of the child. I never saw a judge do that before or since that trial.

I think the judge was making a point because his decision required the mother to ask the father for more time with the child, and it required the father to ask the mother for leave to enroll the child in school and to be involved in any other important decisions. Working under this situation they reached an agreement only a few months after the judge’s decision.

Child Custody Lawyers in Frederick Maryland

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