Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 8, 2012

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Legal custody is a parent’s right to make major decisions affecting the best interests of a minor child. These major decisions could include, but are not limited to, morality, residence, healthcare, religion, and education. If the parents are married or listed on the child’s birth certificate, then the parent does not need to pursue the courts to secure authority to make the above-mentioned decisions for their child. 

However, if there is a disagreement between the parents, such as a separation or divorce, or a reason for the government to believe that a parent is unfit to make these decisions for a child, then a court will determine which parent has legal custody over a child, or the extent to which both parents have legal custody over a child. 

Legal Custody vs. Physical Custody

While legal custody entails the decision-making for a child, physical custody is the actual physical possession and control of the child.  When someone is referred to as the “custodial parent,” this usually refers to physical custody.  This means that the child lives with the parent for majority of the time.  The other parent may still have visitation on a regularly basis.  Usually the other parent will be referred to as the “non-custodial parent.”  Even though a parent may be referred to as a “non-custodial parent,” that does not mean that the parent does not have legal custody over the child.  A parent could not have physical custody, but still have shared or joint legal custody. 

The child could live with the other parent, but the “non-custodial parent,” may retain legal custody with the rights to weigh in on decision-making for the child.  While the child does not live with the “non-custodial parent,” that parent can still have the right to say where the child can live, such as moving out-of-state.   Essentially, even if a parent does not have the child in their possession at the time, they still may possess the rights, also known as legal custody, to state what the child can and cannot do when the child is in someone else’s possession and control.

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Joint Legal Custody

Joint custody is when the family court awards some type of shared custody to both parents. Joint custody can come in two forms. Parents can have joint legal custody and/or joint physical custody. When parents have both forms of joint custody, this is usually referred to as joint shared custody. This means that the parents essentially split both legal and physical custody of the child. When awarding joint custody, the court is attempting to assure that the child will have continuing and hopefully frequent access to both parents. 

With regard to joint legal custody, both parents are entitled to have an opinion as to the child’s religious upbringing, where the child will attend school, what extracurricular activities that child will partake in, where the child will live, and possibly whether the child will be exposed to unrelated, opposite gender adults when visiting the other parent. The last factor is usually referred to in terms of a morality clause in child custody agreements. When parents have joint legal custody, some courts will allow for morality clauses which will often affect what the other parent can and cannot do when the child is visiting at their residence. This usually becomes an issue when the other parent starts dating and the opposite parent does not want the child exposed to the opposite gender, unrelated individual during overnight visits. Since the parents have joint legal custody, the other parent must keep the child away from the person that they are dating when the child is around or they may be found in contempt of court. This would not be the case if the parents did not have joint legal custody.