Understanding the Difference Between Legal Custody and Physical Custody

Physical custody, also known as placement, is the legal term used to describe where a child spends time. During this placement time, a parent has the legal right to make routine or everyday decisions in the child's life. Major decisions still must go through the parent who has legal custody of the child.

In many cases, courts determine that joint legal custody is best for the child. In those cases, any major decisions must be agreed upon by both parents. The length of physical placement is circumstantial to each individual case. Time may be divided evenly between both parents or it could be determined that one parent will receive substantially more time with the child. The determining factors depend on the time constraints of each parent related to commitments each parent has outside the home.

There are multiple forms of child visitation.^[1] Many times visitation orders are in place for the noncustodial parent (the parent with whom the child does not reside full time). Before visitation can begin, a visitation schedule needs to be created with approval from the court. Visitation schedules are commonly set up on weekends and holidays, but other exceptions can be made depending on the schedule of the custodial parent and how cordial both parents are with each other.

Supervised Visitation Rights

Supervised visitation rights are set up when it is determined by the court there is a potential risk for the child's safety when the child is in the care of the noncustodial parent. In these cases, a court-ordered supervisor or the custodial parent may be required to be present during visitation.

Can I Get Physical Custody if I Don't Have Legal Custody?

There are many factors to be considered in child custody cases. The courts will look at the factors of the case (for example, location and where the child might attend school) when making a decision, as well as whether the children will benefit from such a change. They will also look at the ability of the mother to care for the children, and assess whether a change is warranted.

Among the many scenarios, one example is found in the case of Westrate v. Westrate 124 Wis. 2d 244, 369 N.W.2d 165 (Ct. App. 1985).^[2] In this situation, a father wanted to modify his current visitation schedule to alternating full weeks. The trial court initially granted his request, but the decision was reversed upon appeal. This is because the change was not found to be warranted. More importantly, the trial court did not have the authority to grant equal sole custody while the mother remained the legal custodian.