The Many Looks of Physical Custody: A Parenting Plan for Every Situation

• Author: Maleaha L. Brown
• Pages: 13-16

SPRING 2021 13

Oftentimes, custody is the most important and

highly contested issue in a family law case.

Even in cases with amenable parties, disagree-

ments that may arise are typically related to the

physical custody and visitation schedule or

parenting plan for their minor child. Physical custody, or

parenting time, refers to the time that a parent has the child

in their physical care. ese terms will be used interchange-

ably in this article but may represent a shorthand reference to

dierent concepts in your particular jurisdiction.

In some cases, parents share physical custody, which

means that the child spends signicant time with both

parents. is is also known as shared parenting time or joint

physical custody in some jurisdictions. In other cases, one

parent has primary residential or primary physical custody,

which means that the child resides with that parent and has

visitation with the noncustodial parent. In practice, the term

“visitation” has grown to be archaic and practitioners now

commonly refer to time spent with the child by either parent

as parenting time. Despite a change in terminology, it is

generally accepted that it is in a child’s best interest to have

meaningful, predictable, and consistent time in person with

both parents.

Physical Custody Standard and Presumptions

In nearly all courts, the best interest of the child is the

standard to be applied in determining a custody parenting

plan. e court should consider what parenting plan best

meets the child’s health, safety, and well-being. While factors

vary from state to state and are not always statutory, com-

mon factors that a court properly considers in determining a

parenting plan in the child’s best interest are the age of the

child, the child’s preference depending on the child’s age, and

a parent’s willingness to support the other parent’s relation-

ship with the child.

Some states have established statutory presumptions that

require courts to presume that a certain parenting plan is in

the child’s best interest. For example, several states have a

presumption in favor of joint or shared physical custody,

which permits courts to presume that sharing physical

custody is in the best interest of a child absent a clear reason

to nd otherwise. Other jurisdictions give the court broad

discretion to determine an appropriate parenting plan after

evaluating the specics of each custody dispute.

e statutory purpose typically behind a general pre-

sumption in favor of joint or shared physical custody is to

assure that children will have frequent and meaningful

The Many Looks of Physical Custody

A Parenting Plan for Every Situation

BY MALEAHA L. BROWN

Published in Family Advocate, Volume 43, Number 4, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.