The Meaning of Primary Physical Custody

By Carrie Ferland
One parent is usually the primary caregiver.

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In child custody matters, primary physical custody refers to the concept of one parent retaining custody of a minor child for the majority of the child’s time. Minor children typically live with this parent on a full-time basis. The parent who is awarded primary physical custody is known as the “custodial parent,” while the parent who receives visitation rights (or, in some custody matters, takes no share in parenting responsibilities) is known as the “non-custodial parent.”

Physical Custody

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Physical custody predominantly refers to a parent’s right to have her minor child physically live with her. Physical custody also includes the parent’s exclusive authority to make decisions regarding the child’s daily care, which includes everything from what to feed the child for dinner to choosing when and how to discipline the child. Both parents have an equal but separate right to maintain physical custody of their minor children.

Primary Physical Custody

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In divorce and separation matters, both parents still have a respective right to physical custody; unfortunately, both parents cannot actually have physical custody 100 percent of the time. The concept of primary physical custody addresses this issue by awarding one parent the right to retain physical custody for the majority of the time. The non-custodial parent is then awarded visitation rights, which allows the parent to maintain a physical relationship with the child on a regular basis.

Visitation

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The family court circuit has consistency upheld that minor children are best served when they have established relationships with both parents. To ensure the minor child receives the benefits from maintaining relationships with both parents, courts award the noncustodial parents visitation rights. Visitation is based on a regular schedule, often one full weekend every one or two weeks. This allows both the child and the non-custodial parent to exercise their individual rights to maintaining a relationship with the other party.

Comparisons to Sole Physical Custody

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The concepts of primary physical custody and sole physical custody are common points of confusion. Many parents use the terms synonymously, when in fact, they refer to two individual practices. Sole physical custody eliminates the noncustodial parent; only the custodial parent has physical and legal authorities over the minor child. There is no visitation and no split legal authority in sole physical custody cases.

Dilemma

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While primary physical custody addresses the issue of where the minor child will live, the concept creates yet another quandary: the noncustodial parent’s right to custody. Since federal law gives both parents an equal right to custody, the very nature of the concept seems to violate that right for every noncustodial parent in the country. To address this, the family court system considers only what is in the best interest of the child when awarding primary custody.

Since forcing the child to spend alternative weeks or months with each parent is far too cumbersome on minor children, especially those enrolled in school, the courts instead look at the potential custody arrangement that will cause the least disruption in the child’s life. By doing so, the child’s rights are weighed above those of the parents, and because “the best interest of the child” prevails over the parents’ rights at all times, the noncustodial parent’s right to custody is not violated.

About the Author

Carrie Ferland is a practicing civil litigation defense attorney in the Philadelphia Area. As an author, her work has been featured in various legal publications for over 10 years. Ferland is a 2000 graduate of Pennsylvania State University and completed her Juris Doctorate and Master of Business Administration with the Dickinson School of Law. She is currently pursuing a Doctor of Philosophy in English.

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