Legal Custody vs. Physical Custody: What’s the Difference?

By Bob Matteucci

Being a parent means being there for your child. Sometimes that means physically — to change dirty diapers, bandage skinned knees, and sit through countless dance recitals and soccer games. But it also means putting in the emotional labor of raising a tiny human — researching preschools, deciding whether they should get the flu shot this year, signing them up for extracurricular activities and camps, and deciding if and when to introduce them to your family’s religious and cultural traditions. 

At Matteucci Family Law, Attorney Bob Matteucci helps divorcing couples negotiate a parenting plan that fairly apportions physical custody of a child and addresses the issues that arise when co-parents must make decisions about how best to raise their child. 

New Mexico Presumes Joint Custody Is Best 

NM Stat § 40-4-9.1 (2021) makes it very clear that couples in the Land of Enchantment should expect to co-parent their children even if they have become disenchanted with one another. 

Under our state law, joint custody is presumed to be in the best interest of a child. When joint custody is awarded:

  • (1) each parent shall have significant, well-defined periods of responsibility for the child;
  • (2) each parent shall have, and be allowed and expected to carry out, responsibility for the child’s financial, physical, emotional, and developmental needs during that parent’s periods of responsibility; and 
  • (3) the parents shall consult with each other on major decisions involving the child before implementing those decisions.

Physical Custody

When many people hear the phrase “joint custody” they automatically assume that means equal physical custody, but as you can see in subsection (1) above, the word “equal” does not appear in our state law. Instead, parents must craft a parenting plan that includes “significant, well-defined periods of responsibility.”

Many children do not split the time they spend with each parent 50/50. One parent has primary physical custody while the other plays an important supporting role. Sometimes the periods a noncustodial parent is granted with a child are referred to as visitation. 

How the time a child spends with each parent is apportioned varies from family to family. The key consideration is what is in the best interest of the child. 

Legal Custody

Beyond ensuring that every parent has the opportunity to spend a significant amount of time with their child, New Mexico state law also recognizes that making decisions about a child’s care and making sure their emotional and developmental needs are met is an equally important part of the parenting process. 

When joint custody is awarded, our state law grants both parents a say in their child’s religion, education, child care, recreational activities, and medical and dental care. These responsibilities are often referred to as “legal custody.” 

Both parents will typically share joint legal custody even if one parent has primary physical custody. However, some families prefer a modified joint legal custody plan that gives the parent who has primary physical custody the power to make parenting decisions without consulting the child’s other parent out of convenience. For example, if a child’s noncustodial parent lives a long ways away, or works a job that makes it difficult for them to attend parent-teacher conferences and doctors appointments, it is often in the child’s best interest for the parent with primary physical custody to be able to make quick decisions by his or herself. 

There are also times where the court will give sole legal custody to one parent, and deny the other parent legal custody. This happens in situations where the parent denied legal custody cannot fulfill their role as a parent due to imprisonment, severe health issues, drug or alcohol abuse, or a history of domestic violence or other forms of abuse.

Serving Families with Dignity & Compassion 

The greatest gift you can give your child is your presence. Literally being there is important, but so is stepping up when difficult decisions about your child’s upbringing must be made. That’s why New Mexico law defines joint custody as both physical and legal custody, and why Attorney Bob Matteucci makes sure his clients are fully aware of their parental rights as parenting plans and custody agreements are negotiated. 

The Matteucci Family Law Firm helps families with child custody matters all across New Mexico including Albuquerque, Santa Fe, Los Lunas, and Rio Rancho. Please contact us today to schedule a meeting. 

About the Author
Bob Matteucci is a board certified family law specialist, with a statewide practice in the area of divorce and family law.