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Family Law Terminology

By Tyler Phelan

Re: Distinction between Legal Custody and Physical Care in Divorce and Custody Actions

Many people confuse the legal terms used by Courts as it relates to proceedings to resolve issues with custody of their children. The purpose of this informational blog post is to shed some light on terms you would likely encounter when involved in a custody action.

If a married couple divorces, or if unmarried parents of minor children do not have a custody agreement or order, the Court will have to make several determinations regarding the care and support of the children.

Legal Custody- refers to the rights and responsibilities parents have toward their children. Typical rights and responsibilities of legal custody include but are not limited to decision making affecting the children’s legal status, medical care, education, religious instruction and extracurricular activities.

Iowa law generally favors joint legal custody, meaning both parents will have equal rights and responsibilities discussed above. The Court may order sole legal custody to one parent if it determines joint legal custody is unreasonable and not in the best interests of the child. Legal custody is NOT physical custody. The time with the kids is not relevant to legal custody.

Physical Care­- refers to the right and responsibility to maintain a home for the minor children and provide for the day-to-day routine care of the children. The historical action was primary care to one parent and visitation to the other. Now Joint Physical Care is an option where the parents share the care responsibilities and costs of raising the children equally.

Under a joint physical care arrangement, the parents have the children in their care for approximately half of the time. Keep in mind that the parents can be fairly flexible in deciding a schedule that will work best for their situation.

If the Court does not award the parties joint physical care, it will have to decide who will have primary physical care. A primary physical care arrangement places the minor children in the home of one of the parents. The parent who is awarded primary physical care is called the “custodial parent” and the parent who does not have physical care is called the “non-custodial parent.” The custodial parent has an obligation to support the relationship between the minor children and the non-custodial parent. Keep in mind that “legal custody” and “physical care” are two distinct arrangements, so it is possible (and most common) for the parents to share joint legal custody but award primary physical care to one parent.

The Court looks at various factors in determining who would be the more suitable parent to have primary physical care if joint physical care is not appropriate under the circumstances. The overarching theme as it relates to custody actions is what is in the best interests of the children.

This informational post is a general guideline to provide insight on common legal terminology. Every child custody action is different, so it would be wise to seek legal advice that is tailored to your specific situation. If you have any questions regarding family law, please contact Borseth Law Office and ask for Eric Borseth or Tyler Phelan.


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