Custody

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Custody is the state of physically holding or controlling a person or piece of property, or of having the right to do so. A person who has custody over property or another person often has affirmative duties to protect and care for those in their charge. In the law, custody is used in criminal and family law

In criminal law, a person is in custody when–after being arrested or convicted of a crime–they are held in jail or prison. Such persons are under state control until they are acquitted of their alleged crime or the conclusion of their prison sentence. Persons in state custody are limited in their liberties, and dependent upon officers to meet their needs. As such, officers owe a duty of care to anyone in custody, to ensure their health, wellness, and safety.

Property might also be taken following a person’s arrest during the booking process. All personal effects–such as clothing, jewelry, money, phone, or any other such items–are held in police custody until the person’s release. Most property in custody is safeguarded until reclaimed by its owner. Items considered evidence or contraband, however, are not returned after being taken into custody.

In family law, the question of custody generally arises after the separation or divorce of a minor child’s parents, though non-parent parties might also seek custody. Custody arrangements determine both physical and legal custody of the child. Physical custody determines who lives with and cares for the child. Joint physical custody arrangements allow for a child to spend equal time with both parents. In primary or sole physical custody arrangements, the child spends a majority of the time living with one parent–called the custodial parent–with noncustodial parents often having visitation rights. Legal custody is the right to make important decisions regarding the child’s health, welfare, and upbringing. Like physical custody, arrangements can provide for sole or joint custody. A parent with sole legal custody need not consult the other parent when making decisions, whereas parents with joint legal custody must consult each other regardless of whom the child lives with. 

[Last updated in June of 2021 by the Wex Definitions Team