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During your divorce, you may hear a lot of terms that don’t mean much to you.  Joint vs. sole physical custody is an example. Understanding the difference in these two types of custody, however, can be very important.

You can have joint legal and physical custody, joint legal and sole physical custody, sole legal and sole physical custody or sole legal and joint physical custody.

In this article, I will demystify the meaning of physical custody and provide you some practical understanding of how physical custody arrangements impact your day to day life.

What is Physical Custody?

Physical custody in lay terms is who a child lives with.  Joint physical custody means that your child lives with both parents. The amount of time a child actually lives with each parent has no bearing on whether you have joint physical custody.  Sole physical custody means that legally, we view the child as living with the custodial parent and visiting the non-custodial parent. Again, it does not necessarily impact how much time your child will live with you.

For physical custody, how custody is held will matter to you most if you wish to move far away from the other parent, when you are trying to pick a school, at tax time, or if you need government assistance.

When you have sole physical custody, there is a presumption in your favor should you ever need to move far away that the child should move with you.  When it comes time to pick a school, the school in the custodial parents’ school district is presumed to be the school the child should attend. And when you file your taxes, if you have sole physical custody of a child then you can claim the child as an exemption and for head of household filing status. Finally, if you ever need government assistance programs having sole physical custody of the child means you are the one that can apply for food stamps, Medi-Cal, and cash aid for the child.

If you and the other parent have joint physical custody, the outcome of those scenarios can be very different. If you have joint physical custody and you wish to move away, you have to prove it is in the child’s best interest to move them away from their home, other family, and school.

With joint physical custody, when it is time to go to school, the first question will be where does the child spend her weekdays? Because that is the school district that will be most convenient for the child to attend. If the weekdays are spent in both homes, then the decision will depend on what the court sees as being the school that is in the child’s best interest.  Factors that will be considered is where the child’s extra curricular activities are, safety, and the child’s routine.  When we mediate these issues, you will need to prepare yourself to consider the answer to these questions. For tax purposes and for government assistance, the question is how much time does the child spend with each custodial parent?

How do I decide whether to agree to joint or sole physical custody?

Whether you have joint custody or sole custody of your child can majorly impact your day to day life. A school that is far away from you will increase commute time. Not receiving the tax credit will decrease your funds to support your child.   So before you just agree to a physical custody order invest some thought into it. In mediation, I will help you and your spouse to view these issues from your child(ren)’s perspective. Child custody issues can be very difficult to agree upon, but remember your child(ren) will typically be better off with an agreement made by his or her parents than a ruling made by a judge. If you need help resolving these issues, give us a call.

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