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Strategy-Differences Between Legal Custody and Physical Custody Cases

Physical custody is the physical contact each parent has with the child. Shared custody contemplates frequent and continuing contact with the child and access to both parents on the part of the child.


Legal custody is the legal right to make major decisions affecting the best interest of the child including but not limited to medical, religious, and educational decisions. Shared legal custody provides both parents with the ability to make such decisions regardless of the physical custody or the distance the parents live apart.


To have shared legal custody, it is necessary that the parents have an amicable relationship only in that they can sufficiently isolate their personal conflicts from issues involving the children.


A court will not provide legal custody to one parent lightly at the exclusion of the other as the benefits of shared parental decision-making are presumed to a great extent. Indeed, the perceived benefits of shared legal custody often outweighs judicial expediency meaning that a court will often require the parties to continue to battle in court, litigating one legal decision after another even if the parties are tired of the same and even if that raises the hostility of the parties toward one another.


The key focus therefore, is how the children would be harmed or benefited by keeping the status quo of shared legal custody. This can break the deadlock. It requires however, a keen focus on the issue over a significant period of time, providing example after example of how the other parent’s legal decision making is harming the child in addition to repeatedly being unable to come to joint legal decisions.


In that vein, testimony from disinterested, extra familial sources is most desired if not required to carry the day when such a tough standard needs to be met. In other words, the Father says this, Mother says that approach rarely leads to the clarity required for any judge to decide to override the presumption that shared legal custody is more beneficial.

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