Legal Custody vs. Physical Custody: What’s the Difference?

Indiana recognizes two different types of child custody: legal custody and physical custody. One is not dependent on the other, so a party with primary physical custody may not have legal custody or parties may share joint legal custody while not sharing joint physical custody. The courts use different factors when determining legal custody and physical custody arrangements. However, both are focused on the best interests of the child. This blog discusses legal custody vs. physical custody and what the difference is. 

Physical custody refers to where the child is physically located. Parents may share physical custody, and each spend an equal amount of time with the child, or one parent may be considered the child’s primary custodian and spend more time with the child, while the other parent, the non-custodial parent, exercises parenting time with the child. Physical custody is governed by Indiana’s custody order statute (I.C. 31-17-2-8) which provides that there shall be no presumption in favor of either parent and a custody decision will be made based on the best interests of the child. It further provides that in order to determine the child’s best interests, the court will consider all relevant factors including the child’s age and sex, adjustment to home, school, and community, and relationship with parents and siblings, as well as the parents’ and child’s wishes, with more weight given to a child wishes when they are 14 years of age or older, the physical and mental health of all parties, and evidence of a pattern of domestic abuse or a de facto custodian. 

Whether a physical custody arrangement is made by agreement of the parties or ordered by the court, the non-custodial parent is entitled to reasonable parenting time with the child, unless the court finds, after hearing, that parenting time may endanger the child’s physical health or significantly impair their emotional development (I.C. 31-17-4-1). Reasonable parenting time is considered to be at least the amount of time outlined in Indiana’s Parenting Time Guidelines (Par. Time. Guid. pmbl). Oftentimes, parents “share” custody through the exercise of parenting time. So one parent remains the primary custodian, but the other has parenting time equal to the amount of time the custodial parenting spends with the child. True shared parenting is considered an alternate parenting plan which is discussed in depth in the guidelines in Introduction to Shared Parenting: An Alternate Parenting Plan and Will Shared Parenting Work for You? Questions to Consider

Legal custody refers to the parent with authority to make the big decisions in the child’s life, such as religious training, healthcare, and education (I.C. 31-17-2-17). The court may order joint legal custody if it finds that joint legal custody would be in the best interests of the child (I.C. 31-17-2-13). When determining the best interests of the child for legal custody decisions, the court will consider primarily whether the parties have agreed to joint legal custody, but will also consider the fitness and suitability of each party, whether the persons awarded joint custody are willing and able to communicate and cooperate in advancing the child's welfare, the wishes of the child, with more consideration given to the child's wishes if the child is at least 14 years of age, whether the child has a close relationship with both parents, the physical and emotional environment of each parties home, and whether the parties live in close proximity to each other and plan to continue to do so (I.C. 31-17-2-15). 

Parents are most often awarded joint legal custody if they can get along with one another in order to make decisions involving the child and neither parent has a proven history of making poor decisions regarding the child. A parent found unfit to have joint legal custody may still retain primary physical custody, as legal custody is not dependent on the physical custody arrangement (I.C. 31-17-2-14). Courts do recommend that parent’s create their own parenting time plan and reach an agreement on legal custody as well as all other matters involving the children. There are several online resources and apps that can assist parents with creating a parenting time plan and communicating with one another about the child’s activities and appointments. Parent’s may find one or more of these helpful when creating their own parenting plan and co-parenting a child from two different homes. 

Our Family Wizard is the oldest and probably most widely used app for co-parenting. It includes calendars, secure messaging and file sharing, and expense logs where you can track shared expenses. The app does cost $12.50 a month for the cheapest plan; however a free 30 day trial, fee waivers and military discounts are offered for those who qualify. The Indiana courts provide a free parenting time calendar application that will generate a 12 month calendar parenting time calendar based on your answers to some simple questions. This visual aid can help assist you, your attorney, or the court in creating a parenting time plan best for your child. The best free co-parenting app, available for both Apple and Android, is AppClose. The app features a dynamic calendar, secure messaging, audio and video calling, and a built in payment solution to help you easily track and pay shared expenses. 

This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. The blog is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.


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