The Meaning of Primary Physical Custody

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When a couple with minor children divorces, a child custody order is part of their divorce settlement. Their child custody order can grant the parents joint or sole physical custody, depending on the children’s needs. When one parent has primary physical custody, the other has visitation rights.

In child custody matters, primary physical custody means that one parent retains 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.”

TL;DR (Too Long; Didn't Read)

When a parent has primary physical custody of her child, the child lives with her full time or close to full time.

Understanding the Physical Custody Definition

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Physical custody predominantly refers to a parent’s right to have a minor child physically live with that parent. The physical custody definition 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.

Determining Child 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 unless they live together. 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 Rights and Child Custody

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Many family courts have consistency held 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 primary physical custody definition and sole physical custody definition are common points of confusion. Many parents use the terms interchangeably, when in fact, they refer to two separate types of custody. 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.

Understanding Physical Custody Dilemmas

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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. Courts consider a variety of factors to determine the arrangement that is in a child's best interest, such as:

  • The child's relationship with each parent
  • The desirability of keeping the child in her current routine and home environment
  • Any history of abuse in either parent's home 
  • The child's special medical and academic needs

Since forcing the child to spend alternating weeks or months with each parent can take a toll 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.

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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.

Photo Credits

  • parent et enfant image by Philippe LERIDON from Fotolia.com