Physical custody generally refers to where a child will live when parents divorce or separate. Physical custody is much different than legal custody, which has to do with the rights and responsibilities of the parents to their children. The parent with physical custody has the right to have his/her child live with him/her. If a child lives exclusively or primarily with one parent that parent is generally referred to as the custodial parent with sole physical custody or primary physical custody. The other parent would be considered the non-custodial parent and would typically have visitation rights to his/her child. If a child lives equally or close to half the time with each of his/her parents the parents will generally have joint physical custody. In some joint physical custody arrangements, a parent that has more time with the child may be denoted as having primary physical custody of his/her child while the other parent has secondary physical custody.

Joint Physical Custody According to the California Family Code section 3004, "Joint physical custody" means that each of the parents shall have significant periods of physical custody. Joint physical custody shall be shared by the parents in such a way so as to assure a child of frequent and continuing contact with both parents, subject to Sections 3011 and 3020."

Sole Physical Custody According to the California Family Code section 3007, "Sole physical custody" means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation."

Primary Physical Custody Primary physical custody is a term that is often used to denote the parent with whom a child spends or lives the great majority of time with. The term “primary physical custody” is often used in cases where parents are awarded joint physical custody and one parent has slightly more time than the other. However, in California, the term "primary physical custody" is not found in the family code and there is no statutory language to define its legal meaning. Nevertheless, the courts continue to denote one parent as having "primary physical custody" and the other “secondary physical custody,” which has created issues with its interpretation, particularly in "move-away cases" in which the parent with "primary physical custody" seeks permission from the court to relocate with his/her child.

Whether you have a custody order that defines how physical custody is awarded or if there is no order regarding physical custody of the children, physical custody is an important legal term that you should become familiar with. Having a general knowledge and awareness of common legal terms such as "physical custody," "sole physical custody," and "joint physical custody," and with the help of an experienced family law attorney, you can have greater assurance that you are doing what is necessary to protect your parental rights, parental responsibilities, and your relationship with your children.

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