There are two types of child custody: i) Legal Custody and ii) Physical Custody.  Legal Custody of the child is the right to be involved in the major decisions governing the child’s upbringing and the right to be kept informed about matters relating to the child (ie. what school does this child go to, what religion, what are the child’s grades, etc.)

Physical Custody is where the child resides.  If the child resides primarily with one spouse over the other, that spouse where the child primarily resides is said to have Primary Physical Custody.  An equal time split or even a 4/3 (four days with one spouse and three days with another spouse) is called Joint Physical Custody.  Determining whether the parties have Joint Physical Custody or whether one parent has Primary Physical Custody is important for the following reasons:

1. The amount of child support is different depending on the types of physical custody the parties have;
2. Primary Physical Custody gives that party an advantage should he/she wish to relocate to another state;
3. It is easier to change physical custody from having Joint Physical Custody to Primary Physical Custody than from the non-custodial parent to obtain Primary Physical Custody.

The overall standard governing who gets Primary Physical Custody is what is in the best interest of the child.  The court can look at almost anything to determine what is in the best interest of the child, but the main factors that the court looks at are:

1. Has there been any domestic violence against the other spouse or against the child;
2. What are the parties work schedule;
3. Who has been the primary historical caregiver of the child;
4. Has there been any illegal drug use by the party;

There are also a slew of other factors that the court will look at such as who the child wants to live with if the child is a teenager, which parent will most likely facilitate visitation with the non-custodial parent, and even whether one parent has had an extra-marital relationship.  Regardless, the court can and will look at any factor that it deems relevant to determine what is in the child’s best interest.  Interestingly, however, is that statutorily, neither party is given a preference based upon his/her gender – in other words, the mother is not automatically assumed to be given Primary Physical Custody.