The divorce process can become extremely difficult when a child is involved, especially if they are a minor. Because young children often do not understand what it means for their parents to divorce, they can feel overwhelmed by a judge’s rulings regarding custody. Additionally, if you’ve never dealt with a custody battle before, then you may also feel overwhelmed or confused when it comes to what exactly a custody case entails.
While our family law attorneys at The Law Office of Young, Kuhl & Frick, LLC, will guide you every step of the way to help you understand exactly what you’ll be going through in a custody case, we wanted to share some insight on one of our most frequently asked questions: what is the difference between legal and physical custody?
Keep reading to learn about both legal and physical custody and what each entails and involves as well as what factors determine who is awarded custody.
Legal Custody
Legal custody is the type of custody that addresses decision-making for your child or children. Typically, Courts will assume that parents make decisions jointly. Typical topics parents share decision-making about include:
- Where the child will attend school
- Medical care
- Religion
- Extracurricular activities they’re involved in
Missouri and Kansas both have “joint legal custody” and “sole legal custody” arrangements. Joint legal custody is when both parents have the right to make decisions for the child’s upbringing and should make those decisions together. Sole legal custody, in contrast, is when one parent makes the decisions for the child. These different types of legal custody methods are independent of physical custody, as we’ll discuss below.
Physical Custody
Physical Custody is typically what parents think of when they think of the word “custody” – when the child enjoys parenting time with each parent. There are two types of custody – “joint physical custody“ and “sole physical custody.” Missouri has both joint physical custody and sole physical custody arrangements. Kansas also has joint and physical custody arrangements but they’re referred to as “joint residency” and “sole residency.”
Generally speaking, joint physical custody is when the child spends frequent, continuing and meaningful time with each parent. This can vary from a 50/50 split to one parent having more time with them, and works best when both parents live near each other and can both meet the children’s needs. Joint physical custody can be an easier transition for a child or children because it allows them to spend physical time with both parents.
How is Custody Determined?
The process of determining a custody agreement begins with the courts in the correct jurisdiction. When determining jurisdiction, Missouri and Kansas follow the Uniform Child Custody Jurisdiction and Enforcement Act. Under the UCCJEA, Missouri will usually be the home state of children who are subjects of a divorce action when the children have lived in the State of Missouri for the past six months before the commencement of the divorce. Also, if Missouri was the home state of the children within six months before the commencement of the divorce, but has since been absent from the State if one parent has continued to reside in Missouri, Missouri may still be considered the children’s home state. Kansas child custody jurisdiction determinations operate essentially the same way.
Once jurisdiction is established, the next step is to determine custody based on the child’s best interest. In both Missouri and Kansas, the best interest of the child or children is the main deciding factor when it comes to determining custody arrangements. If the parties are unable to reach an agreement on their own, or they just have questions, they will need to work with a family law attorney to determine a parenting plan that addresses custody of the child or children. Ultimately, if the parents are unable to reach an agreement on their own, the judge will decide custody arrangements with the child or children’s best interest at heart. A judge will make these decisions keeping the child’s physical and mental wellbeing in mind, taking into consideration statutory factors such as the parties’ wishes, how the child or children is doing in the community, the mental and physical well-being of all parties involved, and to an extent, the child’s wishes, as well as other factors.
While some believe that the mother is automatically granted sole custody, especially of young children, that is simply not the case. The Court does not award custody based on the parent’s gender and will grant it keeping the child or children in mind.
If you are currently going through a custody case or the divorce process and are looking for a family law attorney in Lee’s Summit or a family law attorney in Kansas City, contact The Law Office of Young, Kuhl & Frick, LLC. With over fifty-three years of combined legal experience, our family law firm is comprised of a team that’s skilled in both negotiation and litigation, handling family law matters from the most complex to the most straightforward.
We have offices in Lee’s Summit, Missouri, and Leawood, Kansas (by appointment only). Our firm’s family and divorce attorneys have practiced in Jackson, Clay, Cass, Lafayette, and Platte County, Missouri as well as Johnson County, Kansas.