Also known as: primary physical custodian · physical custody · residential custody
Written by attorneys — see sources below.
An arrangement under which a child resides primarily with one parent or caretaker and that parent or caretaker exercises day-to-day care and supervision of the child. The arrangement confers actual possession and control together with responsibility for routine decisions about the child's daily life.
Peter Park and Priya Prasad divorced in State A. The decree placed their daughter with Peter. When Priya sought to modify the decree through arbitration, the arbitrator treated the matter as a child-related dispute because it concerned primary physical custody. The award confirmed that the child would continue living with Peter and receiving daily care from him.
Philip Powell, the maternal grandfather, petitioned for custody after Pearl Porter could no longer care for her son. The court found that Philip had lived with the child for fourteen months and made day-to-day decisions in cooperation with Pearl. It awarded Philip primary physical custody so the child would live with him and receive his daily supervision.
After Patricia Patel and Pedro Pacheco separated, the court considered both parents' requests. It determined that the child should reside primarily with Patricia because she had provided consistent daily care. The decree therefore granted Patricia primary physical custody while awarding Pedro scheduled visitation.
Phoenix Technologies employee Pearl Porter placed her infant with her sister Patricia Patel while she worked abroad. Patricia made all daily decisions about the child's meals, medical appointments, and schedule. When Pearl sought return of the child, the court recognized Patricia's primary physical custody because she had exercised sole day-to-day care for over a year.
After divorce in Chile, the mother removed the child to the United States without the father's consent. The father held a ne exeat right that the court treated as part of primary physical custody. Because the child had been living with and receiving daily care from the mother, the removal violated the custody arrangement.
Timothy Abbott, a British citizen, and Jacquelyn Abbott, a United States citizen, married in England in 1992. Their son A. J. A. was born in Hawaii in 1995 after the couple moved there for Mr. Abbott’s astronomy work. The family relocated to La Serena, Chile, in 2002, where marital discord led to separation in March 2003. Chilean courts granted the mother daily care and control of A. J. A. while awarding the father direct and regular visitation rights, including every other weekend and the full month of February each year. Under Minors Law 16,618, article 49, Chilean law conferred a ne exeat right on the father requiring his authorization before the child could leave the country. The mother obtained a ne exeat order from the Chilean family court prohibiting removal of the boy. In August 2005, while proceedings remained pending before the Chilean court, the mother removed A. J. A. from Chile to Texas without permission from the father or the court. A private investigator later located the mother and child in Texas. The mother filed for divorce in Texas state court in February 2006, seeking modification of the father’s rights including sole authority over the child’s residence. Mr. Abbott filed an action in Texas state court requesting visitation and an order to show cause why the child should not return to Chile. The state court denied return but granted liberal visitation periods in Texas during February 2006. In May 2006, Mr. Abbott filed suit in the United States District Court for the Western District of Texas under the Hague Convention and the International Child Abduction Remedies Act seeking the child’s return to Chile. After a bench trial at which only Mr. Abbott testified, the District Court denied relief in July 2007. The United States Court of Appeals for the Fifth Circuit affirmed on the same rationale. The Supreme Court granted certiorari to resolve a conflict among the circuits on the status of ne exeat rights.
View caseA juvenile court ordered a mother to produce her child after the state alleged neglect. The mother asserted a Fifth Amendment privilege. The court held that primary physical custody carried with it a duty to produce the child because the mother exercised actual possession and day-to-day control.
Maurice M. was hospitalized at three months old with a fractured left femur and other indications of severe physical abuse. Hospital personnel observed respondent Bouknight shaking Maurice and handling him improperly. This led them to notify the Baltimore City Department of Social Services of suspected child abuse. In February 1987, the Department secured a court order removing Maurice from Bouknight's control and placing him in shelter care. Several months later, the shelter care order was modified to return Maurice to Bouknight temporarily. Following a hearing, the juvenile court declared Maurice a child in need of assistance and placed him under the Department's continuing oversight pursuant to a protective supervision order. The order required Bouknight to cooperate with the Department, continue in therapy, participate in parental aid and training programs, and refrain from physically punishing Maurice. Eight months later, the Department returned to juvenile court fearing for Maurice's safety. BCDSS caseworkers related that Bouknight would not cooperate with them and had in nearly every respect violated the terms of the protective order. On April 20, 1988, the court granted BCDSS' petition to remove Maurice from Bouknight's control for placement in foster care. BCDSS officials also petitioned for judicial relief from Bouknight's failure to produce Maurice or reveal where he could be found. The court issued an order to show cause why Bouknight should not be held in civil contempt for failure to produce the child. Maurice was not produced at subsequent hearings. At a hearing one week later, Bouknight claimed that Maurice was with a relative in Dallas. Investigation revealed that the relative had not seen Maurice. The next day, following another hearing at which Bouknight again declined to produce Maurice, the juvenile court found Bouknight in contempt for failure to produce the child as ordered. The court directed that Bouknight be imprisoned until she purged herself of contempt by either producing Maurice before the court or revealing to the court his exact whereabouts. Bouknight's claim that the contempt order violated the Fifth Amendment was rejected by the juvenile court. The Court of Appeals of Maryland vacated the judgment upholding the contempt order. The Supreme Court granted certiorari.
View casePrimary physical custody concerns where the child lives and who provides daily care. Legal custody concerns authority to make major decisions about education, health, and religion. A parent may hold primary physical custody while sharing legal custody with the other parent.
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No. The term requires only that the child reside primarily with one parent and receive day-to-day care from that parent. The other parent may still exercise visitation or joint legal custody without defeating the primary physical custody designation.
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Courts look for proof that the nonparent lived with the child for a substantial period and made day-to-day decisions about the child's care either alone or with a parent. A bonded relationship formed with parental consent also supports the claim.
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Yes. When the child and both parents leave the decree state and substantial evidence about the child's care is no longer available there, the original court loses exclusive continuing jurisdiction. Modification may then be sought in the child's new home state.
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…adolescent years and his language, identity, and culture and traditions. That a ne exeat right does not fit within traditional physical custody notions is beside the point because the Convention’s definition of “rights of custody” controls. This uniform, text-based approach ensures international consistency in interpreting the…