How do Legal Custody, Physical Custody and Parenting Time Differ?

The term “custody” has many different meanings in our world.  It can be used to refer to whose home is the children’s primary residence, which parent has the most parenting time, or which parent has decision making authority. In the legal world, however, “custody” has a specific meaning. Most often when one hears an Oregon lawyer or judge use the term “custody,” he or she is referring to legal custody.

Joint versus Sole Legal Custody

Legal custody denotes how the major decision-making authority is shared between the parents.  In Oregon, the parents either share joint legal custody, or one of the parents is awarded sole legal custody. Oregon law prohibits a court from ordering joint legal custody unless both parents agree.

Powers or Rights Granted With Legal Custody

The two major categories of authority granted with legal custody are healthcare and education.

With regard to healthcare decisions, examples include whether a child sees a therapist and which therapist, what age a child will get braces, and whether to follow a traditional vaccination schedule or skip them altogether. The parent with legal custody is the parent who takes the child to routine doctor appointments.

Major education decisions can include whether to hold a child back a grade, whether to have a child tested for a learning disability, and which school to attend (including a private school, though the other parent cannot be forced to pay for private school).

Legal custody also traditionally includes decisions concerning religion, though with some exceptions, these days we rarely see a non-custodial parent restricted in practicing his or her religion with the children. Finally, traditionally we have also talked about legal custody including the right to choose the child’s residence, but with more and more restrictions on a custodial parent’s right to move a considerable distance from the other parent, this “right” is limited.

Physical Custody: Seldom Seen in Court Orders

Physical custody is more confusing because there is not a precise definition in the law and yet, still, on a rare occasion it will appear in a parenting plan. It can be used to highlight which parent has more than 50 percent of the parenting time. Sometimes even with parties who share 50/50 parenting time, one parent still wants a label to denote some privilege concerning rights for the children, though again, there is no clear legal right that follows with the label.

Parenting Time Refers to the Schedule

Parenting time refers to how much time and when each parent will be in charge of caring for the children. It is independent of the legal custody determination. If the parents cannot agree, a court will determine the parenting schedule by considering the “best interests of the children.” Keep in mind that legal custody is different than parenting time. Regardless of who has legal custody, each parent has equal rights to access information from therapist, doctors, teachers and the like. Both parents can attend public performances, sports practices, and school events. Now more than ever, the courts are looking for ways to maximize both parents’ involvement in a child’s life, provided both parents are good, capable parents.

Parents who share joint legal custody also have the choice to split parenting time 50/50 or have one parent take care of the child the vast majority of the time. No matter what the parenting time schedule or who has legal custody of the children, each parent is responsible for the day-to-day decisions concerning the children while they are in that parent’s care.

An attorney specializing in custody matters can advise what custody and parenting time awards are most likely if you and the other party end up in court. A consultation with such a lawyer is a good starting point before you agree to any arrangement with the other parent. Your lawyer can also offer some pointers in how to discuss these issues with the other parent and negotiate the most favorable outcome for you and your children.

If you’re looking for representation in the Oregon courts, please visit the Child Custody, Support and Visitation attorney page.