What is physical custody versus legal custody?

Many people are unaware that there are two different categories of custody in Missouri and both must be included in a custody judgment.  I have many people who come into my office, either as clients, parents in a case in which I am Guardian ad Litem, or as a case that I am mediating, who simply say, “I want ‘joint custody.'”  My reply is always, “what does “joint custody” mean to you?”

Most people are thinking of physical custody when they say “joint custody.”  To some, this means 50% of the time.  To others, it means a custody schedule allowing for substantial time with each parent (though not necessarily 50/50) and designated as “joint physical custody.”  The Missouri custody statute requires a custody judgment to be designated as either joint physical custody or sole physical to one of the parents.  The law does not define the an amount of time that constitutes joint physical custody versus sole physical custody.

Other people are thinking of legal custody when they say “joint custody.”  Legal custody is the decision-making rights for all major decisions involving the child/ren.  There is a requirement in the statute that the Judge consider joint legal and reject it as a viable possibility before considering sole legal for one of the parties.  Joint legal custody requires the parties to confer and agree before making final decisions on the major issues (as opposed to day-to-day issues).  Sole legal custody still typically requires the legal custodian to confer with the other parent but allows that person to make a final decision if the parties cannot reach an agreement.

Both physical custody and legal custody must be included in a Parenting Plan, and each must be designated as either joint or sole.  If it is joint physical custody, one parent must be designated as residential custodian for purposes of mailing and education.