In divorces involving minor children two of the biggest concerns for parents are custody and placement of the children. Both terms are easily incorrectly used interchangeably so it is important to explain the differences between the two and what they mean.

Legal custody is the right and responsibility to make major decisions concerning the child. Those major decisions include the right to consent to marriage, the right to consent to a child entering military service, obtaining a driver’s license, authorizing nonemergency health care and choice of school and religion. Legal custody may be jointly awarded to the parties or it may be granted to one party only. There is a presumption that joint legal custody is in the best interests of the child and that the parties can cooperatively make these decisions together. That presumption may be overcome if both parties agree that sole custody should be given to the same person. If the parties do not agree that sole custody is appropriate, but at least one of the parties requests sole custody, the court may still grant sole custody if it finds either that one party is not capable or interested in performing parental duties and responsibilities, conditions exist that would interfere with exercising joint custody or that parties will not be able to cooperate in future decision making. Regarding the last consideration, evidence of interspousal battery or domestic abuse creates the presumption that joint custody would not be appropriate.

Physical placement is simply where the child is physically residing at any given time. The court is obligated to allocate periods of physical placement between the parties, unless the court finds that physical placement would endanger the child’s physical, mental or emotional health. The court is also obligated to create a schedule that allows the child to have regular and meaningful periods of physical placement that maximized the amount of time that the child may spend with each parent.

There are specific factors that the court considers when making orders regarding custody and placement that will be the subject of a later blog.