The Language
What do the terms legal custody, physical custody, sole custody, joint custody, primary custody, and secondary custody all mean? If you are in a custody dispute, you may hear any or all of these terms used and it can be quite confusing.
Legal custody generally refers to major decision making authority for the child. This does not include the day to day decisions while the child may be in your care, but generally refers to major decisions concerning the health, welfare, educational, and spiritual needs of the child. Generally speaking, most parents can agree on joint legal custody and may defer to recommendations of healthcare providers or a third party neutral when they cannot agree. When a party knows at the time that custody is being negotiated, that there are distinct differences in each of the parent’s position on a major decision for the child, it may be important for one party to seek primary legal custody.
Physical custody is generally what is more often the main subject of dispute between parties and refers to which parent has physical custody of the child and how much time each parent has with the child. The term sole custody is less often used in most modern custody orders and has been replaced with some of the other terms you would be more likely to see, such as primary custody, joint custody, and secondary custody. Essentially part of the confusion among these terms is that they mean whatever the order says they mean. For example, an order may say that the parties shall have joint custody of the minor child, but this doesn’t necessarily mean that it will be equal time with each parent, it may mean that one parent has primary custody and the other has secondary custody in the form of visitation, it may mean that each parent has equal or relatively equal custody, such as “week on, week off” custody, or some other custody arrangement that includes both parents having some amount of time with the child on a regular basis. Since all of these scenarios can be included within the term “joint custody” it is very important that the child custody order or parenting agreement define exactly what that custody arrangement is going to be.
As described above, the terms primary and secondary custody are also frequently used in parenting agreements and custody orders. (By the way, whether it is a parenting agreement, a child custody consent order, or you had a hearing with the judge and he or she ruled on your matter and you have a child custody order, they are all equally enforceable by the court so long as the order or agreement has been signed by the judge). Often times, an order will read that the parties shall have joint custody, with one parent having primary custody and the other parent having secondary custody in the form of visitation and then will go on to define that visitation schedule. This just means that one parent is going to have more physical custody time than the other parent.
While the terms used in a custody order or parenting agreement may be confusing, it is important to keep in mind that these terms are really going to be defined by the details of your order or parenting agreement and don’t always mean the same thing in every situation.