Duhaime's Law Dictionary


Legal Custody Definition:

The lawful entitlement to make decisions in regards to another, such as a parent or a prison warden.

Related Terms: Custody, Guardianship

A child custody status which entails the right to make, or participate in, the significant decisions affecting a child’s health and welfare (compare with physical custody and joint custody).

These words of Justice Dalianis of the Supreme Court of New Hampshire in Re Barrett & Coyne, capture the essence of legal custody in the context of family law:

"Legal custody refers to the responsibility for making major decisions affecting the child's welfare, and legal custodians are entitled to make the major decisions regarding the health, education and religious upbringing of the child."

In DJ v. PC, Justice Matthews of the Supreme Court of Alaska wrote that the term is often used to distinguish it in those rare situations where legal custody is vested in one individual, but physical custody in another:

"Legal custody refers to the responsibility for making major decisions affecting the child's welfare and is a status that may be held by a parent who does not have physical custody, which refers to the responsibility for physical care and immediate supervision of the child.

"A natural parent will always have legal custody of a child absent legal termination of those rights."

In most situations, although distinguished in law, legal custody includes physical custody:

"Legal custody is a legal status that is created by court order. It vests in the custodian the right to have physical custody of a child or minor and to determine where and with whom that child shall live within or without the state. It also vests in the custodian the right and duty to protect, train and discipline the child and to provide him with food, shelter, education, and ordinary medical care. It, however, is subject to the powers, rights, duties and responsibilities of the guardian of the person of the child and subject to any residual parental rights and responsibilities."1

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