“I have custody of my children.” You hear people say this but what does it mean in a legal context? Does this mean that the other parent is absent and isn’t involved in the children’s lives? Does this mean that only one parent gets to make the decisions for the children and that the other parent has to do what they are told? Does this mean that only one parent has “rights” regarding the children?
Saying “I have custody” can mean a lot of different things to different people. This is in part due to the legal terms involving custody are more complex than this and “custody” is really more of an umbrella term than a precise legal meaning by itself.
Custody in a legal sense generally means something or someone being in the care or control of another. A person is in “custody” when the person is incarcerated. When you possess an item, you have custody of it.
When discussing the custody arrangement of children between two parents, we generally refer to custody, but what do we really mean? In this article, we review what we really mean by custody in a legal sense when it comes to the custody of the children. Understanding what the Court means by custody is important if you are facing custody issues regarding your own children.
Understanding Legal Custody vs. Physical Custody
There are two types of custody addressed when we address custody of the children in a legal sense: legal custody and physical custody. Thus, a custody order has two custody orders within it. One addressing the legal custody of the children. The other addressing the physical custody of the children.
Although legal and physical custody are often discussed together, they address separate aspects of the parenting relationship.
Definition of Legal Custody
Legal custody gives a parent the final authority and responsibility to make the significant decisions affecting a child’s upbringing. These decisions commonly include:
Education and school selection
- Medical care and treatment, such as which doctor to choose or whether to have a certain medical procedure
- Religious upbringing (in some cases)
- Mental health counseling, including choosing a therapist
Courts may award:
- Sole legal custody, where one parent has the final decision-making authority and responsibility when the parents cannot reach an agreement on major issues;
- Joint legal custody, where both parents have equal authority and responsibility and thus must reach an agreement on major issues.
Joint legal custody requires some ability to communicate and cooperate to be effective. When disagreements arise, a court order may outline a communication protocol or how disputes are resolved before court intervention can occur.
A court can also allocate legal custody between the parents on different issues. For example, one parent might have final say regarding education and school issues and the other parent may have final say on medical care and treatment.
What Legal Custody is Not
Keep in mind that legal custody does not give the parent with sole legal custody the ability to dictate to the other parent on day-to-day issues. When a parent has sole legal custody, that parent has the responsibility and authority to make the final decision on major issues when the parents are unable to reach an agreement. It doesn’t mean that the other parent has lost their rights or their ability to be informed about the child’s upbringing. Even if a parent does not have legal custody, they generally have access to the child’s school and medical records and in most cases, can attend parent-teacher conferences, doctor’s appointments, and the children’s activities. The custody order may even specifically require the parent with sole legal custody to communicate with the other parent before making the final decision on major issues.
Having sole legal custody also doesn’t allow the parent with sole legal custody to dictate the day-to-day activities or schedule of the other parent. For example, many parenting plans will specifically state that the parent cannot set activities on the other parent’s parenting time without their permission. The custodial parent also can’t withhold the minor children from the court-ordered parenting time just because they disagree with a day-to-day decision made by the non-custodial parent during their parenting time. If it is not truly a matter of safety, the non-custodial parent generally gets to decide how the children spend their day-to-day time during their own parenting time.
Definition of Physical Custody
When a parent says they have custody of their children, they are usually referring to physically having the children live with them majority of the time. When we talk about custody in a plain-spoken way, we are usually talking about physical custody. It would be weird for a parent that is out-of-state and sees their children only a few times of year to tell people they have “joint custody” of their children just because they have joint legal custody. If you hear custody spoken in a casual way, even in a legal setting, they are usually referring to physical custody of the children.
Physical custody is where the children physically reside majority of the time. In Nebraska, we are generally looking at overnights when determining physical custody. For example, even if a parent visits with the children every day after school, this generally wouldn’t be considered joint physical custody if the children were staying every night with the other parent and essentially living at just one parent’s house. The Courts in Nebraska generally look at number overnights when deciding physical custody.
While even in the legal systems when often refer to “sole physical custody” or “joint physical custody,” the term “sole physical custody” is no longer the technical term in many jurisdictions. For example, in Nebraska, the legal term of “primary physical custody” is generally technically more correct than “sole physical custody.” At times people think that “sole physical custody” means that the other parent doesn’t have parenting time or rights. This term alone doesn’t mean that and most of the time the opposing is true. The term “primary physical custody” often better addresses the situation and is technically more correct. However, it is more common to hear sole physical custody than primary physical custody even in a legal context.
Some jurisdictions have moved on to other terms as well. For example, you may hear of “shared” custody instead of joint or the term “parenting time” instead of visitation or even of physical custody.
Physical custody arrangements may include:
- Sole (also known as primary) physical custody, where the children live mainly with one parent, but often generally having some time with the other parent, such as every other weekend.
- Joint physical custody, where the overnights of parenting time are divided more evenly, often 50/50, but it doesn’t have to be 50/50 to be considered joint.
When one parent has primary physical custody, the other parent typically has set scheduled parenting time that the custodial parent can’t take away. The parenting plan within a custody order also usually addresses holidays, school breaks, and transportation responsibilities. Just because a parent has primary physical custody doesn’t mean that they get to set the other parent’s schedule or take away their time or rights. In fact, the Court can issue severe sanctions against a custodial parent that denies court-ordered parenting time, up to and including ordering jail time.
How Legal and Physical Custody Are Allocated
Courts may award legal and physical custody in different combinations. One parent may have primary physical custody while both parents share joint legal custody. In other cases, one parent may be awarded both sole legal custody and primary physical custody, but is still subject to the other parent’s rights under the set parenting time schedule in the parenting plan.
Understanding these distinctions can help the parents resolve conflict and understand who has the final say when there is a dispute regarding practical matters, such as:
- Which home is used for the address/location of school enrollment
- Who authorizes medical treatment or chooses the medical practitioner
- Who decides whether the child receives a flu shot if the parents disagree
- Who gets the parenting time or the holiday when there is a dispute regarding the schedule
Understanding these combinations and their effect helps parents see how custody arrangements function beyond definitions.
Common Custody Arrangements
Courts often approve one of the following structures:
| Arrangement | Structure |
|---|---|
| Joint legal & joint physical custody | Parents share major decisions and divide parenting time according to an about equal schedule of overnights |
| Joint legal custody with primary physical custody | Decisions are shared, but the child stays more nights with one parent |
| Sole legal with primary physical custody | One parent is responsible for making the major decisions and the child primarily lives with that same parent |
The Courts try to fit the schedule to fit the family. There are other arrangements too, but these are far less common. For example, split custody is when there are at least two children and each child primarily lives with a different parent. Another example is when one parent has sole legal custody but the other parent has primary physical custody. This is rare but can happen under certain, albeit unusual, facts. There are also things like bird-nesting where the children stay in the home but the parents move in and out depending on their parenting time days.
Factors and Implications of Custody Decisions
Custody determinations shape daily routines, decision-making authority, and long-term stability for a child. Custody disputes are often some of the hardest fought parts of a disputed divorce.
How Courts Determine Custody
Nebraska courts apply the best interests of the child standard when deciding custody. Judges may consider factors such as:
- The child’s age and emotional needs
- Each parent’s ability to provide stability via consistent housing and employment
- The child’s relationship with each parent
- School and community continuity
- Any safety or welfare concerns
- Logistical concerns, especially if the parents live far apart or have a demanding work schedule
If the parents reach an agreement on custody and parenting time, courts often approve it unless it conflicts with the child’s well-being.
Impact on Parental Rights and Responsibilities
Legal custody determines who decides disputed major decisions, while physical custody determines how many overnights the children spend with each parent. Sharing joint legal custody requires cooperation and communication, while physical custody arrangements affect schedules, transportation, and financial obligations.
Whether the Court orders sole physical custody or joint physical custody often makes a large impact on how financial support for the children is calculated.
If the parents are awarded joint physical custody, then both parents are the “custodial” parent and neither would be ordered to pay child support to the other if their earnings were equal. This is a little bit of a simplification but generally a parent that has joint physical pays or receives a relatively small amount, if any, in child support. Instead, the parents are each responsible for providing for the children during their own parenting time. Plus, there are generally specific provisions in the court order for the parents with joint physical custody to pay a percentage (usually around 50/50) of some of the shared custody expenses. For example, the parents with joint physical custody might not be ordered to pay child support to the other but are instead both ordered to pay 50% of the extracurricular costs and 50% of the costs of the child’s monthly cell phone bill.
On the other hand, when one parent has sole physical custody, the non-custodial parent generally has to pay child support to the custodial parent, and sometimes at a significant amount. The Court often orders some sharing of expenses in addition to child support, such as the costs not covered by health insurance, but generally the custodial parent is responsible for paying for majority of the child’s extracurricular and other expenses out of the child support without an additional duty of the non-custodial parent to contribute to these. The idea is that the custodial parent budgets the child support to pay for these expenses.
Legal custody doesn’t have this same affect. The child support is generally based on whether the parents have joint physical custody or sole physical custody and the arrangements regarding legal custody don’t generally affect the financial support in most cases.
Keep in mind that the parents can often tailor their financial provisions to their specific situation when in their child’s best interests. For example, the parents may agree that the non-custodial parent pays less in child support but is ordered to pay a share of the child’s extracurricular expenses. This can equal more than the child support amount depending on the sport and the child’s involvement, especially with many children now being involved in select sports that require travel.
Effect on a Child’s Daily Life
The determination of legal and physical custody often has an impact on a child’s life. Where they go to school, how often they see each parent, and how disputed decisions are made between the parents about their care often impacts what the child’s life looks like on a daily basis after the parents separate.
Part of being a good parent is trying to minimize for the children the disruption and sense of loss that often comes when parents separate. While even the best parents are going to have disagreements and disputes with the other parent at times, it is imperative that each parent tries to remain reasonable and to focus on what is best overall for their children when there is a dispute. Sometimes the other parent is just easier or more difficult to work with than others. When the parents really just can’t find that common ground, the Courts are there to make the often difficult decisions about the children for them and entering legal and physical custody orders to do so.
Law Office of Julie Fowler, PC, LLO
Trusted Family Law Attorney in Omaha, Nebraska
Facing a divorce, child custody dispute, or child support matter in Omaha? You don’t have to navigate family law alone. Whether you need an Omaha divorce attorney, an Omaha child custody attorney, or comprehensive family law representation, our experienced team is here to protect your rights and your family’s future.