Family law is a very complex and contentious area of the law. The question of custody arises after the relationship of a couple with children erodes to the point that both parents cannot live together. This could be a divorce of a married couple or the separation of unmarried spouses. The concept of custody in family law is bifurcated, which means that there is physical custody and legal custody. Primary custody relates to which of the parents has the physical custody of the child or children in a shared (or joint) custody scenario.
Custody In General
When couples separate, either by divorce when the parties are married or by physical separation if the parties were not married, many times they will go to court to get a custody order. There are two general types of custody: legal custody and physical custody. Custody, in a legal sense, refers to the ability to exercise control over someone or something. Custody can be shared (joint) or sole.
Primary custody is a component of physical custody, and relates to the parent with whom the child lives for a majority of the time. Primary custody is only an issue in situations where parents have joint custody, which is also known as shared custody. In some instances, the child will spend 90 percent of the time living with one parent and 10 percent of the time living with the other parent; yet in other situations the balance may be along the lines of 51 percent to 49 percent. There is also sole physical custody, in which one parent has complete physical custody over the child and the other parent has the right of visitation.
There is generally no primary legal custody. Legal custody is the ability to make decisions regarding the child's life. Legal custody refers to decisions regarding religion, health care and education. Like physical custody, legal custody can be joint or sole. In most instances legal custody is shared, and the key decisions regarding the child's life must be made by both parents. When there is shared legal custody, the parent who has physical custody has the authority to make minor legal custody decisions when necessary. Legal custody is more complex than physical custody, and as such, there is no primary legal custody. The important decisions will be shared and made together and the lesser decisions will be made when each parent has physical custody.
The significance of primary custody is that the parent who has primary physical custody of the child gets to spend more time with the child by virtue of them living together, and also will generally have the ability to make more of the ancillary legal custody decisions. Further, the parent with primary physical custody can also sue the other parent for child support to help pay for the costs of raising the child.
Primary physical custody is not the same thing as sole physical custody. When a parent has sole physical custody, the child lives with that parent all the time. The other parent will almost always have a right of visitation, that is to say, he or she can have a supervised visit with the child, but cannot take custody of the child. In primary custody, the other parent still has a custody right to the child.