Understanding the Two Types of Child Custody
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Understanding the Two Types of Child Custody

Jan 13, 2023 | Articles, Child Custody

By Meg Alexander, Esq.

When most parents think of custody, they think of wanting their child to spend as much time as possible with them. However, there are actually two types of custody in Maryland – legal custody and physical custody. Both types of custody will be defined as either “sole” or “shared” custody. “Joint” is also used in place of “shared.”

It is essential to know the difference between legal and physical custody and what differentiates between sole or shared/joint custody.

Legal custody involves parents’ rights and obligations to make major, life-impacting decisions for their child.

These decisions include but are not limited to, decisions about the child’s education, religious upbringing, medical care, and discipline. If a parent has sole legal custody, that parent may make these decisions without consulting the other parent. If the parents have joint legal custody, they must work together and consult with one another about the decisions to be made for their child. Sometimes, when the court awards joint legal custody, it will also award “tie-breaking authority” to one parent. Tie-breaking authority means that if the parents are communicating with each other and attempting to work together to make decisions for their child but cannot come to an agreement, the parent with tie-breaking authority has the right to make the final decision.

Physical custody involves the right of a parent to provide a home for the child. This includes the day-to-day caretaking and decisions for a child.

For example, the parent with physical custody will decide whether the child may have a playdate on that day, what the child will eat for dinner, or what time the child will go to bed that night. In essence, physical custody allows the parent to determine what the child’s everyday life looks like while the child is in that parent’s home. In Maryland, sole custody versus shared physical custody is determined by the number of “overnights” each parent has with the child. An overnight is pretty much what it sounds like – if the child sleeps in that parent’s home from the end of one day to the beginning of the next day, that is considered an overnight. The parent with the child on any particular overnight is known as the “custodial parent.”

For parents to have shared physical custody, the child must spend 35% or more of the overnights in a year with each of the parents. 35% equates to roughly 92 nights a year that a child must spend with a parent for that parent to have shared physical custody. If a child spends less than 92 nights a year with one parent, the other parent is considered to have sole physical custody of the child. One parent having sole physical custody does not mean that the other parent does not get any time or overnights with the child. It just means that the parent with less than 92 nights a year is considered to have “visitation” or “access” or “parenting time” with the child rather than physical custody of the child. That parent can still have overnight arrangements with the child. This type of arrangement, where a parent has overnights but not shared physical custody, is most commonly seen when a parent has the child in their home every other weekend.

For all you visual learners out there, this chart breaks down the different types of custody that were just discussed:

Custody can be challenging to understand and even more difficult to decide what’s best for your child when it comes to legal and physical custody.

An Andalman & Flynn family law attorney will be able to provide you with more information about the different types of custody, explain how a court would decide the issues of legal and physical custody, and help you come to a custody agreement with your child’s other parent that is in your child’s best interest. And if an Agreement isn’t possible, our family law attorneys are also very experienced in taking custody cases to trial.

About Andalman & Flynn, P.C.Founded in 1998 in downtown Silver Spring, Maryland, Andalman & Flynn has forged a distinguished reputation for legal excellence. The Firm practices family lawestate planning, and probate throughout Maryland and the District of Columbia, and represents individuals seeking disability benefits throughout the country. The Firm focuses on cases that impact the rights of everyone and is there for clients when responsive legal help is most critical. The Firm has provided legal analysis on national and local television and radio, and its attorneys often testify before legislative bodies and are routinely invited to contribute to prominent legal publications. For more information about Andalman & Flynn, please visit the website at andalmanflynn.com or call 301.563.6685.