One question that often comes up when I am talking with clients about their custody situation is the difference between legal and physical custody. It is important to understand these terms because they play an important role in the custody process.
Legal custody establishes who gets to make decisions regarding the health, upbringing and welfare of the child. The Custody Rules provide the following definition: Rule 1915.1, Pa. R.C.P. (“[L]legal custody,” the right to make major decisions on behalf of the child, including, but not limited to, medical, religious, and educational decisions”.)
In the vast majority of cases, both parents share legal custody equally. This means that both parents have the right This means that all major parenting decisions affecting the health, welfare, education and religion of the child shall be made by both parents jointly, after discussion and consultation with each other with a view towards obtaining and following a consensus-based policy in the child's best interests. If the parents are not able to agree on an issue that falls under legal custody, then that issue will have to be submitted to the Court for a decision.
There are some instances where a parent will not be awarded legal custody. These could include distance (one parent lives in a far away state), incarceration or lack of involvement, but the situations where a parent will not be awarded legal custody are rare.
Physical custody establishes who the child lives with and when. See Rule 1915.1, Pa.R.C.P. (“[P]hysical custody,” the actual physical possession and control of a child.”). Within physical custody there generally are three types of custody – primary custody, partial custody and shared custody.
Primary custody is defined as having custody of the child more that 50% of the time (measured in overnights). Rule 1915.1, Pa. R.C.P. (“[P]rimary physical custody,” the right to assume physical custody of the child for the majority of time.”). Traditionally, it has been most common for one parent to have primary physical custody of the child/children however recently it has become more common to see shared, 50-50 custody arrangements.
Partial custody describes the custody time that the parent who does not have primary physical custody has. Rule 1915.1, Pa. R.C.P. (“[P]artial physical custody,” the right to assume physical custody of the child for less than a majority of the time.”) This could mean that the parent with partial custody has custody every other weekend and a dinner visit during the week or it could be an arrangement with more time, but less than 50-50.
Shared custody commonly refers to an equal (50-50) custody arrangement. Rule 1915.1, Pa. R.C.P. (“”[S]hared physical custody,” the right of more than one individual to assume physical custody of the child, each having significant periods of physical custodial time with the child”.) An equal custody arrangement can be one week on, one week off; 2 days, 2 days and alternating weekends or some other arrangement.