What is the difference between legal and physical custody?

Posted by Akosua Agyepong | Apr 20, 2021

People commonly use the term “custody” to generally refer to child custody issues. It may be important, however, to know that in Massachusetts, “custody” can refer to two (2) different topics: legal or physical.  If you are involved in a child custody dispute, it is relevant that you know the difference between legal custody and physical custody, as they have separate purposes.

Legal Custody:

Legal custody refers to “major decisions regarding a child's welfare including matters of education, medical care and emotional, moral and religious development.”  M.G.L. c. 208, § 31. It gives a parent the right to make decisions such as where a child will attend school, the type of medical care a child will receive, what religion, if any, a child will practice, etc.

Legal custody can either be shared or awarded to one parent.  In cases of divorced parents, absent legitimate reasons why legal custody should not be shared, the court is likely to award shared legal custody, giving both parents the opportunity, right, and responsibility to make decisions for the benefit of a child.  If parents prove, however, that they are unable to amicably make decisions for the benefit of a child, the court is likely to award sole legal custody to the parent who has consistently and properly taken on the responsibility of making decisions for the child.  This does not mean that the other parent cannot be informed as to the child's medical, religious, or educational developments.  In such a case, the court may allow the parent without legal custody access to the child's medical and educational records if it deems it appropriate.

Physical Custody:

Physical custody generally refers to the residence of a minor child. Similar to legal custody, physical custody can either be awarded solely to one parent or shared by both parents.  M.G.L. c. 208, § 31 defines sole custody as when a child resides with and is “under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.”  In a nutshell, when a parent has sole physical custody, the child primarily resides with that parent and the other parent has parenting time that likely reflects a schedule that allows the child to be with the primary custodian for two-thirds of the time.  In Massachusetts, the non-custodial parent usually has weekend parenting time.

Shared physical custody on the other hand is a child having “periods of residing with and being under the supervision of each parent; provided, however, that physical custody shall be shared by the parents in such a way as to assure a child frequent and continued contact with both parents.”  In such an arrangement, the parents tend to have a schedule that allows the child to spend time with them as equally as possible.  This could mean a week-on-week-off or split-week schedule.

When asking for custody before a court, be mindful and intentional about the kind of arrangement you are seeking.

About the Author

Akosua Agyepong

Associate Attorney

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