There are two types of child custody in every New Jersey divorce: legal custody, and residential custody. In this video, New Jersey divorce attorney Jordan Rickards explains the very important differences.

What follows is a transcript of the video above:

“Hi, everyone. Thanks for tuning in. Nice to see you. I want to talk today about the two different kinds of custody in New Jersey, and this is true whether you’re going through a divorce or whether you’ve never been married before. Every one of those child custody cases is going to involve actually two different kinds of custody at once, and a lot of people don’t understand the distinction, and they call me and they say, “Well, I want custody of my kids.” And I say, “All right. What exactly do you mean by that?” And I’m finding more and more that people aren’t really even sure quite what they’re asking for. So I thought I would do this video and just kind of explain the differences between the two kinds of custody that are going to be involved in your case and every other case. And the two kinds you have to understand are what’s called legal custody and physical custody. And those are two very different things.

Legal custody simply means the legal authority and responsibility for major decisions regarding the welfare of the child. The major decisions, things like child’s medical care, their religious affiliation, educational choices, where they go to school, tutors, that sort of thing, things involving their safety, other serious choices, that’s what we call legal custody. It has nothing really to do with who the child lives with. It just has to do with the major decisions concerning the child. And I’m going to tell you right now that in the vast majority of cases, probably 99% of cases, the parties have shared or joint legal custody, which is to say equal input, as far as those things, equal rights to make major decisions regarding the welfare of the child over, again, the major decisions. And I keep repeating that word because I’m going to draw a distinction, in a minute, between major decisions and day-to-day decisions. Day-to-day decisions are more function of who the child happens to be with on that day, and I’ll get to that in just a second.

So as I said, the vast majority of cases are going to involve what’s called joint legal custody with both parents equally sharing in that major decision-making role. The only times you’ll see that not happen and it becomes sole legal custody is if one of the parents is really, really unfit. If they have a drug problem, if there’s a history of domestic violence, if there’s a history of child abuse, if they’re entirely checked out of the child’s life and have nothing to do with the child, then you’ll have a sole legal custody situation.

But short of that, short of someone being completely unfit, you’re going to have shared or joint legal custody, and it’s important to know that just going in, because if you have an expectation that your husband, who’s always been involved with the kids and is a pretty decent guy, even though he might be a bad husband, and you think that he’s not going to have shared legal custody with you, well, I’m sorry, that’s just not how it is. Both parents, there’s a strong presumption there’s going to be joint and legal custody.

Now, physical custody is different. Physical custody is who the child is residing with more than the other. And we basically go by overnight visitation. That’s the gold standard here. And so we ask ourselves, who is the child going to be spending more overnight visitation, have more overnight parenting time with is perhaps a better way to put it. So if you’re only seeing your child every other weekend, Friday into Saturday, Saturday into Sunday, which is to say two overnights every two weeks, well, you don’t really have much physical custody. And in fact, in that sort of situation, it’s considered that your partner has sole physical custody.

So sole physical custody means that the other parent has a 104 or fewer overnights per year. In other words, the quick math of that is there’s 52 weeks in a year, and so if you have two overnights per week, that’s 104 overnights per year. You need one more overnight for it to become what’s called a shared residential parenting situation.

And this has a great impact on child support, and I’ll get to that in another video, but you have to understand this is very distinct from legal custody. And what you should be able to see here is that since the parent who has physical custody has more influence over the day-to-day decisions, they, in effect, kind of have more legal custody as well. Because legal custody is of course just the major decisions, but those aren’t the only decisions that govern a child’s life. The day-to-day, the routine decision-making that parents engage in all the time, that is going to be localized with whichever parent has a child at that point.

Now, for example, if the parent who has a child less is with the child during his parenting time, he gets to make the day-to-day decisions then. It’s not like the parent of primary residential care always gets to make the day-to-day decisions. It’s whoever the child happens to be with. But the point is, if the child is with one parent more than the other, that parent obviously is going to have the authority to make more day-to-day decisions.

Now, here’s a question for you: What happens when parents have joint legal custody and they can’t agree on certain things, they can’t agree on what doctor the child should see, they can’t agree on their religious affiliation, they can’t agree on what school the kids should go to? Well, it becomes a test of wills at that point, and unfortunately, the tie-breaking vote becomes the court, and that’s not a pleasant experience because then you have to file motions, and courts don’t want to get involved in these sorts of things. Then you have to start getting even best interest valuations and other things involved, and it becomes very expensive.

What some parents do is they have a parenting coordinator, which is to say, if they can’t agree on something, they’ll go to this parenting coordinator, who’s usually another attorney, and they’ll bring the situation to them, and they’ll just let that person make the decision. They become a tie-breaking vote, so you don’t have to go to court or you don’t have to go to a mediation. But unfortunately, it does happen.

Lastly, what determines physical custody? What determines who gets to be with a child more and when? Well, I did a video on that called The Seven S’s of Child Custody in New Jersey. I’ll link to it underneath this video, and I recommend you go watch that one. I want to keep it separate from this, but for today’s purposes, it’s enough to know that there’s a difference between legal custody and physical custody and going into your divorce, and actually as you through your divorce, it’s important to keep that distinction in mind.

If you want to talk about this, if you have a custody situation you want to discuss, just give me a call the number below or email me, and I’ll be happy to set you up with a free consultation. All right, guys. Good luck with everything. Take care.”