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What is the Difference Between Physical Custody and Legal Custody?

A divorce is usually the last option for a married couple since there would be many complications that will arise. One of these complications is custody of the child. This is an important matter for the court to settle. It should also be known to all parties that there is more than one type of custody.

What is Physical Custody?

When we talk about custody, we usually refer to which parent the child is staying with. This is called physical custody. The person who is responsible for the physical needs of the child, and also, making day-to-day decisions. Some examples of these are the child’s everyday meals, their bedtime and transport arrangements. 

The parent who is awarded physical custody is also called the “possessory conservator”. The child will take residence with that parent. In Texas, custody is often referred to as “conservatorship.”

What is Legal Custody? 

Legal Custody refers to the authority to make parental decisions. Some of these decisions will dictate the day-to-day life of the child, like which school to attend, which religion to follow, and which activities the child will participate in. 

The parent with legal custody will also decide on the child’s healthcare, which includes medical treatments. The parent will also be the one to sign waivers or consent forms.

Can one parent have both Legal and Physical Custody?

The usual presumption of the court is that both parents will have joint physical and legal custody. However, the court can make its own decision based on the welfare of the child. If one parent has shown violent tendencies or abusive behavior, they may not be given physical custody or even visitation rights. 

The judge can also award both legal and physical custody to one parent if the court sees fit. For example, if the mother has the conjugal residence that is near the school and the father has yet to establish a new place of residence that is fit for the welfare of a child, he may lose out on his part of joint custody. 

If the father in this situation also has legal issues or has displayed unsound judgment, then he might also not be awarded legal custody.

There could also be cases where one parent has physical custody but not legal custody or one parent can have the rights to make decisions on certain aspects (ex. Religion) but not education. 

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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