Legal Custody vs. Physical Custody – A Summary
on 11/21/2023 by Marissa Miller
In family law, custody is a major topic. Many parents recognize the term custody and that the Courts submit orders establishing custody, and in many cases, child support. However, there are two types of custody in family law. Family law cases, such as divorce, legal separation, and custody disputes, may address both legal custody and physical custody. Legal custody and physical custody are two different aspects of child custody, each with distinct roles and responsibilities.
Legal custody addresses a parent’s authority and decision-making powers concerning the important aspects of a child’s life. Examples of legal custody aspects include education, healthcare, religious upbringing, and general well-being. If the parents of the child are married when the child is born, then both parents shall have legal custody and access regarding the child. Iowa Code §§ 598.41(1)(e); 600B.40(1). However, should the child be born out of wedlock and the paternity of the child has not been acknowledged, then only the mother of the child (or birthing person) shall have legal custody. Iowa Code § 600B.40(1). Joint legal custody provides both parents the authority and decision-making powers.
In Iowa, Courts rarely deviate from joint legal custody. When Iowa Courts order joint legal custody, both parents are required to be informed and collaborate in the decision-making process. This is because the Iowa Courts believe the best interest of the child is to establish and continue a relationship with both parents. Both parents are considered to have a legal and constitutional right to parent the child and direct the care, upbringing, and education of the child. Washington v. Glucksberg, 521 U.S. 702 (1997). Parents are encouraged to work together to develop a parenting plan and strive to provide the best for their child.
The Iowa Courts recognize that the best interest of the child should be weighed when determining whether both parents are fit to direct the care, upbringing, and education of a child and in certain circumstances may limit legal custody to sole legal custody. When legal custody is granted solely to one parent then the legal custody is referred to as sole legal custody. The parent granted sole legal custody is responsible for making decisions regarding the child. As mentioned previously, Iowa Courts rarely and sparingly grant sole legal custody.
Physical custody, or “physical care,” specifically relates to where the child primarily resides and who provides the daily care and supervision. There are two kinds of physical custody: (1) primary physical care awarded to one parent, and (2) joint physical care (otherwise known as “shared care”) awarded to both parents.
Joint physical care will generally consist of equal, or near equal, parenting time between parents, both of whom will be expected to fulfill the primary caretaker responsibilities while the child is in their care. Every case is different and there are many factors for a court to consider, but Joint physical care generally works best in situations involving successful co-parenting and parents living in close proximity to one another.
Primary physical care is established when one parent, referred to as the custodial parent, has the child residing with him/her the majority of the time or more than half of the time. The other parent, referred to as the non-custodial parent, will be awarded visitation rights or parenting time.
These custodial determinations will influence other aspects of your custody case, such as the parent responsible for providing child support and how the child support is calculated.
Given Iowa’s strong presumption toward joint legal custody, the dispute in custody cases is often over the kind of physical care requested by the parents. Understanding the appropriate terminology, as well as the distinction between the kinds of custody that will be addressed in your case, will help to avoid unnecessary confusion. While it may seem intuitive, it is also important to understand how Iowa law defines the different kinds of custody and the roles and responsibilities associated with each.
Contact the family law attorneys at our firm if you are looking for assistance in your family law case.
- family law
- marissa miller