What’s the Difference Between Legal Custody and Physical Custody

Often times people confuse the definition of legal custody and physical custody. This is a common mistake but there are significant differences in meaning. Let’s explore legal custody, physical custody and visitation.

In New Mexico legal custody means who is making the major decisions for a child in five significant areas: religion, health care, schooling, residence and recreational activities. New Mexico has a legal presumption that joint legal custody is in the best interests of a child. Granted this presumption can be overcome with evidence but parents start with this legal presumption.

Physical custody usually refers to where the child resides primarily. Courts often refer to primary physical custody as the place where the child calls “home.” As you can see from contrasting these definitions legal custody has no bearing on physical custody and vice versa. However, there is a third consideration and that is visitation or periods of responsibility.

These terms are generally used in the context of child support. A parent who has visitation is usually under a worksheet A situation where the noncustodial parent has the child less than 35% of the time. Conversely, when a each parent has the child for more than 35% of the time then their time sharing arrangement is based on periods of responsibility. So, the next time someone asks if you have custody ask them to clarify legal, physical or time sharing.

To learn more about these definitions and how they interact to impact on your rights and those of your children contact our child support and custody experts by emailing us at info@JusticeLegalGroup.com or call us at 505-880-8737.