The issue of child custody can come up in a variety of legal situations. When there are minor children in a divorce case, the court must determine issues of legal and physical custody of the parties' children. Likewise, when parties are not married, one party may choose to file a petition to determine custody and parenting time. When one parent receives certain types of public assistance, the Department of Human Services may choose to file a petition for child support which will automatically trigger a determination of child custody if it has not already been established. In all of these situations, the court will determine both legal custody and physical custody which each has very different meanings and implications.

Legal custody is essentially a determination of who will make major life decisions for the parties' children. As with all custody decisions, the court must decide what is in the best interests of the children. A court may, and oftentimes does assign both parties joint legal custody. In reality, many courts will assume that joint legal custody is appropriate unless one side is able to show why it is not a viable option.

When parties share joint legal custody, they will have to consult with each other on major life decisions such as where the child will attend school, what kind of medical care the child will receive, when the child will start dating, when the child will start driving, etc. If the parents are not able to reach an agreement, then one party will have to file a motion to have the court decide the issue.

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Conversely, when one party is awarded sole legal custody, that party is able to make all major life decisions without any input from the other parent. Of course, the party having legal custody may take into consideration of the other parent, but he or she is under no obligation to follow their wishes or even seek their opinion.

On the other hand, the label assigned to physical custody is much less important. Physical custody refers to who the child resides with the majority of the time. Many times, a court will assign parents joint physical custody with primary possession to one parent or another. Other courts may call the same arrangement sole physical custody. What really matters when it comes to physical custody is the parenting time schedule. A parenting time schedule determines day-to-day where the child will be residing.

For example, a child may reside with the parent having primary physical custody during the school week and then spend every other weekend with the non-custodial parent. It does not matter whether this arrangement is called “sole physical custody” or “joint physical custody.” What matters is the actual schedule.

When going through a divorce that involves a custody determination, it is important to discuss the ramifications of both legal custody and physical custody with a competent family law attorney. Once custody is established, it is very difficult to change. Ultimately, the court will decide both physical and legal custody based on the child custody factors contained in Michigan law. The specific factors will be discussed in a future post, but it is important to remember that the ultimate determination on custody is made by determining what is in the best interests of the child.