What Is the Difference Between Custody & Residency?

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Some of the terms used in custody cases can be confusing for those who are not familiar with the process. This is one of the reasons it is important to hire a lawyer to help you navigate through the legal terms associated with custody to ensure you get what is fair to you and the children. For the most part, there are two terms that are important to understand: custody and residency.

Legal Custody

When an attorney or judge speaks of custody, she is normally speaking of the legal rights each parent has in regard to the child. Laws differ from one jurisdiction to another, but increasingly, legal custody is typically joint, meaning that both parents have equal rights to access a child's school and medical records, as well as an equal say in major decisions, such as religion and schooling. In cases of joint legal custody, each parent is capable of making minor decisions individually while the child is in that person's care. In extreme cases, where one parent is not involved in the child's life or is a danger to the child, the judge may award sole legal custody, stripping the other parent of any legal rights.


Residency deals with which parent the child lives with a majority of the time. In other words, this parent is considered the primary custodian or custodial parent. In some cases, residential custody may be shared equally between both parents. However, even in these cases, one parent is likely to be deemed the primary parent solely for the purpose of using one address consistently for school and medical records. Whichever parent spends a greater percentage of time with the child receives residency. In some states, this is calculated by number of overnights, while other states use actual time.


Regardless of which parent has residential custody and whether or not legal custody is shared or sole, the non-custodial parent is likely to get visitation time with the child. In many cases, the judge sets a visitation schedule for the non-custodial parent, such as every other weekend and one evening per week. If the parents can agree to a schedule, the judge is likely to allow it. In cases where one parent is deemed a danger to the child, supervised visitation may be awarded, which allows the non-custodial parent to spend time with the child, while keeping the child safe.

Best Interest

All decisions in regard to the legal custody and residency of the child reflect what a judge decides is in the best interest of the child. In some cases, a judge determines what is in the child's best interest based on what the parents say in the courtroom and their parenting plan suggestions. However, if a judge is having a difficult time deciding what is in the child's best interest, he may request a guardian ad litem to serve as the child's voice or order home evaluations to aid his decision.

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