Child Custody: Primary Custody Vs. Physical Custody

Interviewer: Okay. I got you. What about in terms about custody? You talked about primary custody and physical custody? What’s the difference between those two things?

Anitha Johnson: Primary physical custody means one party has the child more than the other party. That’s the person who has the child the most, physically.

Interviewer: Okay.

Anitha Johnson: Shared custody is where both sides have the child a lot more than visitation and shared custody is when the party who doesn’t have primary custody has the child at least 35% of the time.

Interviewer: Is there such a thing as legal custody that’s separate from this custody?

Anitha Johnson: A legal custody is just the decision making, the authority to make decisions in a child’s life, decisions for school, medical care.

Interviewer: Okay. And in terms of child custody, you said the courts don’t tend to favor any one party but how is child custody usually resolved if there’s a dispute? What factors are involved there?

Anitha Johnson: The court looks at a number of custody factors. I can read them to you.

Interviewer: Okay.

Anitha Johnson: Here’s whole list of factors.

Interviewer: I guess the ones that you see that come up the most or the most impactful.

Anitha Johnson: The child’s wishes are important. But that’s only if the child is of an age where they believe the child is mature enough or intelligent enough to make a logical opinion as to whom they would want to live with.

Interviewer: Okay. Are there certain instances where the child’s opinion won’t be recognized by the court?

Anitha Johnson: It’s kind of hard to say. It depends, but if the child is definitely three-years-old or younger and they can’t even communicate their opinion is not likely to be recognized. Even without the preferences, the court also looks at relationship between the child and the parent. So even if the child is young, if the child is closer to one parent, that will be a consideration.

Interviewer: Any other factors that you see come up? Any other major factors?

Anitha Johnson: The fitness of the parent – whether the parent is a fit, proper person. That could mean mentally, their character and reputation, any past agreements between parties. Have the parties previously agreed one week on, one week off or every other weekend? Then that’s one thing that the court looks to in the future. Past agreements. The age of the child. The sex of the child. The number of children. The demands of the parent’s employment – I think that is a big factor, because if you’re so busy working, then that’s going to be a factor and the court will think that you won’t have time for the child. They also look at the party’s communication, whether you have the ability to communicate with each other to reach a shared decision. They look at the flexibility of the parent’s schedule and the length of separation from the parent. So if one party hasn’t seen the child in five years, then they look at that before making a change in custody to that party.

Interviewer: Okay, I got you. So if you are in a situation where someone’s telling you that the other side says they don’t want to ever see the kids again, is that pretty much unrealistic?

Anitha Johnson: Yes. It’s pretty hard for the court to not allow a party to see the child unless there is some objective proof of severe mental or physical causes. Even in many cases where the parent may not be the best parent to supervise visitation, the parent can still see the child in a supervised visitation center.

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