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mommmmm's avatar

What is the difference in legal vs physical custody?

Asked by mommmmm (46points) June 30th, 2013

Mother has full sole custody of stepteen now(medical, educational, living arrangements, etc). She wants my husband to take “physical” custody only because she has enabled bad behavior. She filed a court order as such with no conversation with my husband. What is the difference between the two situations? Physical vs legal custody?

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11 Answers

gailcalled's avatar


Your husband has every legal right to refuse any of your mother’s wishes if she has not had the courtesy to discuss the issues with him (and you). Talk to her lawyer about this asap. Someone had to draw up the court order.

mommmmm's avatar

We did. Husband’s attorney laughed and asked why the mother withheld the child for years and tried to influence him against his father…“Why now are you (my husband) the best parent for the situation?” His second question was “Who was the idiot attorney that filed this petition without contacting you?”

The mother has worked her hardest to keep the child (good kid) from us off and on for years (allowed visitation only when she was angry with him or needed a summer babysitter)—which was not a problem. He is a good kid with us, but saw us only as a punishment (sad). Now she has enabled some terrible behaviors and wants, at least in court docs, for my husband to have “physical” custody only…her to retain “legal” custody. How would that work? Hence my question….Thanks for the reply Here.

gailcalled's avatar

From what I can tell, she continues to be the big boss, but the boy can live with his dad.

Sorry about the situation; it sounds nasty.

mommmmm's avatar

I just saw the link @gailcalled…..Sorry for being dense. Yes, it certainly looks like it would get complicated and stressful for all involved (especially my stepson). No good answers here. Dang it.

Pandora's avatar

I think by retaining legal custody, it means she can take him back at any time and he has to continue child support. (I am not sure about the second bit) but I assume she wants to be able to get him back once the kid is all straighten out and not have to apply for custody again. It probably also keeps her from having to pay child support even though he is no longer in her home.

mommmmm's avatar

OMG…You’re kidding me! And Pandora, that sounds just like her. It would make it easier to take back custody after we “straightened him out”. Although, the behavior problems aren’t at our home…only at hers. Wow. And the child support issue? I never thought of that. My husband commented that he was very surprised that she would file such papers and lose the child support (not a nice lady…I guess you surmised that). But (maybe) from your explanation, she wouldn’t have to and would retain all say in his life (and our lives). I don’t want to touch this with a ten foot pole, but I’ll leave it up to my husband and his attorney. He’ll have to have another talk with his attorney to clarify this issue. Thanks for the new perspective Pandora!

geeky_mama's avatar

@mommmmm – perhaps I read @Pandora‘s post differently than you did – because I read that your husband (dad) would continue to pay the bio-mom child support despite the stepson living in your house (dad has physical custody). That might be why she (biomom) filed it the way she did.. she still wants to get the money (and she’ll argue that she’s still providing health insurance, clothing, etc. to the judge as a reason for why she should still get child support despite the fact he’ll be living under YOUR roof).

I say this from experience because I have a stepchild that lives with us full-time (AND I cover her health insurance, all orthodontics costs, etc.) and yet we pay child support to the bio-mom (who does not have physical custody or provide for her child financially in any aspect.)

Pandora's avatar

@mommmmm I think there is a time limit. However, since she opened the door to custody, your husband can probably fight for either joint or sole custody. She no longer has a leg to stand on. She has essentially said that your husband and you are fit parents. If you have joint custody, then she has to pay for child support when the kid is in your care.
At least that is how it worked with one of my brothers. One had brother didn’t have custody and had to pay child support when the kid was with him. He never did file for full custody. The second brother had dual custody but he was told if he went to court and filed for full custody that she would have to pay child support. They both just opted not to do the court thing and forget about child support. She agree to drop the child support all together since he had her full time. But he had to get it in writing.

mommmmm's avatar

@peeky mama and @Pandora: This is so messy and convoluted. We will have to talk to the attorney, but it’s as much a mute point. This child is 18 next year, and then everything will change as he will be the age of majority. I wish she’d parent better for the boy’s sake, but it’s our experience she’ll never turn over control. My heart breaks for him. We have four other kids (read: my kids) who have had their ups and downs and lived with us 100% of the time. Two in college and two soon to graduate high school. Looking back, I’m really glad I didn’t back down to my kids in the discipline department…they respect us now (which is a miracle really ages: 21,19,18 and 16). We had some TOUGH years/decades! But I would do it with my stepson if I thought my husband and I would really get control from her. We’ll wing it, and I truly appreciate the information and support. I’ll relay the info to my DH. ((hugs))

Pandora's avatar

In that case with college being around the corner she probably figures it will be easier if he goes off with dad to sponge off of him until adulthood. From 18 on she gets a teen who may end up sponging off her and she no longer has child support. I’ve seen parents do that before. Keep the kid and collect all that you can and then dump them off on the other parent once they no longer can collect support and they gain their freedom.
BTW, Welcome to fluther.

hearkat's avatar

Yes; legal custody means that she’d have the last word in anything that involves the child – medical decisions, educational decisions, etc. Physical custody (custodial parent) only refers to the child’s residence.

In this case, it seems like the father has to choose whether to fight for all-or-nothing, because what she’s suggesting is unreasonable. I suggest that you and your husband consider if you’d like to try to get full custody of the son; and if so, to ask the son what his position is and to have the courts speak with the son as well.

It’s gonna be a rough ride. Good luck, and welcome to Fluther!

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