Term of the Month: Legal Definition of Custody

Custody refers to the legal arrangements that dictate whom a child will live with and who will make major life decisions on behalf of the child. Legal and physical custody arrangements significantly impact a child’s life, influencing their overall well-being and stability.

What is the Difference Between Legal and Physical Custody?

Custody has two parts: legal and physical.

Legal custody refers to the ability to make decisions on how to care for and raise the child. Legal custody determines who has the authority to make significant decisions about the child’s education, healthcare, and religious upbringing. If the parents have joint custody, both parents will be involved in making these decisions. In some cases, the court may grant sole legal custody to one parent, especially in high-conflict situations or when one parent is deemed unfit. If one parent has sole custody, they will make the decisions on their own and inform the other parent afterwards. In Texas, legal custody is also referred to as conservatorship.

Physical custody refers to where the child lives on a regular basis. Physical custody vs legal custody is an important distinction, as physical custody pertains to where the child lives, while legal custody involves decision-making authority. Generally, the parent the child does not live with will be allowed to have regular visits with the child.

Joint physical custody allows the child to spend relatively equal time with each parent, promoting meaningful relationships with both. The custodial parent, who the child lives with primarily, is responsible for the daily care and upbringing of the child.

Primary physical custody is often awarded to the parent who has been the child’s primary caregiver.

Sole physical custody may be granted when it is in the child’s best interest, particularly in cases where the other parent cannot provide a safe environment.

Parents can make any custodial arrangement that is in the best interest of their children, including having the child spend a relatively equal time living with each parent. It is the policy of the State of Texas to assure children will have frequent and continuing contact with both parents who have shown the ability to act in the best interest of the child. Factors taken into consideration may include:

• The age and health of each parent.
• The age and health of the child.
• The child’s educational needs through high school.
• The desire on the part of each parent to have sole or joint custody.
• The employment stability and potential of each parent.
• The financial resources of each parent and of the child.
• The impact on each parent maintaining two households.
• The income and earning capabilities of each parent.
• The possibility of the child obtaining employment.
• The tax liabilities of each parent.
• The willingness both parents demonstrate to allow visitation.
• The ability of each parent to cooperate and communicate effectively in joint legal custody arrangements.

Sam M. “Trey” Yates, III is a Houston-based Board Certified Family Law Attorney and creator of The Guide to Good Divorce℠ seminars for women. If you have questions about your Texas divorce, please contact The Law Office of Sam M. “Trey” Yates, III, P.C. for a consultation. If you would like more information about Trey Yates’ 2021 The Guide to Good Divorce℠ seminars, please visit www.GuideToGoodDivorce.com or call 713.742.6606.