Usually, primary custody means the ability to choose a child’s primary residence and make important decisions for the child. 

If the state has a co-parenting law, as most states do, the non-primary custodian (or non-residential parent in some jurisdictions) has input in these areas. But the primary custodian (residential parent) usually has the final say, unless a judge intervenes.

Legal custody issues have recently entered a new frontier. In September 2023, California Governor Gavin Newsome vetoed a bill potentially classifying a parent who didn’t support a child’s gender identity determination as a threat to “the health, safety, and welfare of the child.”

Breaking Down the Kinds of Child Custody

A parent with legal custody has the right to make life-changing decisions for children, such as gender identity determination  (in some states). More importantly, the legal custodian has the right to make everyday decisions, such as what doctor a child sees or what school a child attends.

The non-residential custodian may express his/her opinion in these areas. But the primary custodian has the power to break a 1-1 tie, unless the judge orders differently.

To give the non-primary custodian more influence, attorneys often include specific language in the custody order, such as the child will attend a Christian school or the child’s primary physician is Dr. X.

Physical custody is basically a parenting time spectrum. In a few cases, the judge drastically limits parent-child contact, to perhaps three or four hours a week. In a few other cases, the judge orders a 50-50 timeshare division. Most cases are somewhere in the middle, depending on the best interests of the child. More on that below.

Barring serious safety concerns, judges usually approve legal and physical custody settlements. Divorce is very hard on children, and divorce trials are even harder. Frequently, a mediator steps in and helps parents resolve custody disputes, so they don’t have to put these disputes into the hands of a judge or jury.

Other forms of alternative dispute resolution include collaborative law and mini-trials. Collaborative law is a litigation alternative that resembles ongoing mediation. The parents meet outside a courtroom setting about once a month to work out child custody and other matters. At a mini-trial, lawyers present their opening arguments and rest their cases. Over 80 percent of jurors make up their minds after opening statements anyway.

Primary Custody Benefits

A primary custody determination has some significant benefits, as well as some significant burdens, in two key areas.

Time Spent With a Child

Children spend about 70 percent of their time with residential parents, if the custody order features a traditional every other holiday and every other weekend timeshare scheme. Additionally, residential parents usually have the exclusive right to determine a child’s primary residence.

The child’s best interests primarily determine these benefits. Best interest factors, which vary in different states, usually include:

• Parental Preference: Just like some parents are determined to be primary custodians, others are perfectly fine with being weekend parents, and they clearly express their preference. Other times, they indirectly express preferences. Parents who, for whatever reason, didn’t spend much time with their children during the marriage almost always end up as non-residential parents.
• Status Quo: Usually, the parents have been separated for at least several months before one files divorce papers. If the current informal arrangement is functional, most judges believe if it ain’t broke, don’t fix it.
• Ability to Co-Parent: Whether parents are married or unmarried, parenting disputes are inevitable. For the most part, courts prefer parents to work these disputes out between themselves. So, if a parent is contentious during court proceedings, many judges conclude the parent wouldn’t be a good co-parent.
• Child’s Preference: Frequently, children don’t express preferences. They don’t want to “choose” one parent over the other one. Additionally, family law judges can easily discern if a child’s preference was coerced.

Spending more time with a child is also a burden. If a parent has primary custody of a child, divorce might not be a hoped-for Declaration of Independence. Furthermore, if a child has issues at home, school, or anywhere else, primary custodians take the primary blame.

Ability to Collect Child Support

A primary custodian has the right to receive child support payments. These payments elevate a child’s standard of living. It’s not the child’s fault that the parents divorce. A child shouldn’t pay a financial penalty for that divorce.

Set guidelines usually determine the child support obligation. Factors include the obligor’s net income and the number of children before the court.

Net income for child support purposes may be different from net income for tax purposes. Some deductions, like voluntary 401(k) contributions and income tax over-withholding, don’t count for child support purposes. Generally, step-children don’t count as a child before the court.

Many states add additional factors. These factors include the child’s age, the obligee’s income, and the parenting time distribution.

Parents who receive child support payments are also accountable for how they spend this money. If Mom orders expensive take-out meals for herself and feeds her children corn flakes for dinner, the court may re-assess the child support obligation.

Child support matters unfortunately cause disputes. Many children don’t want to spend time with their children, but they don’t want to pay child support either.

Primary Custody Frequently Asked Questions

How does  joint legal custody relate to primary physical custody?

In the most common parenting timeshare arrangement, the parents share decision-making power for their children. The primary custodian usually has the power to break a 1-1 tie. Physical custody refers to physical presence. Usually, children spend about 70 percent of their time with a primary custodial parent.

What are my rights with primary physical custody?

The most important right is probably the right to determine the child’s primary residence. In some states and in some situations, a primary custodian may relocate with a child without giving the other parent notice of the move.

What does primary physical custody mean?

In most cases, this term means a child spends about 70 percent of his/her time with the primary custodial parent. The parenting time division may be closer to 50-50 in some cases.

What are the benefits of primary physical custody?

These benefits include spending more time with a child and the right to receive child support payments, or more properly the right to be a trustee for these payments.

Is primary physical custody the same as full custody?

No. Full custody means the absolute right to make decisions for the child and the exclusive right of possession. The parents almost always share legal and physical custody, at least to an extent.