(concurs specially).
I concur in the majority opinion, but write separately to note additional reasons supporting the result reached on the mother’s appeal.
Where, as here, a juvenile court order has transferred legal custody of a child from parents and placed that legal custody with a different individual or entity the juvenile court order controls the relationships of the individuals and entities involved in the proceeding and physical custody should be seen as part of legal custody unless otherwise determined pursuant to the terms of that order. One example of physical custody being separated from legal custody would be a case in which the order transfers legal custody to the DHS for placement in foster family care or for another appropriate placement and the DHS makes such a specified placement. That is not the situation here, as the juvenile court did not specify any placement other than with Leah.
Further, if April can validly claim that she maintained physical custody of Jaden under the facts of this case, she would be able to maintain such a claim even if her contacts with and care of Jaden had been in violation of an order prohibiting her from having contact with Jaden, such as a juvenile court no-contact order, criminal court no-contact order, or domestic abuse protection order. Such a result surely cannot be contemplated by the applicable statutes.
In addition, it would seem that in order for April to have “physical custody” of Jaden she must have his “custody.” The term “custodian” is defined for purposes of Iowa Code chapter 232, pursuant to which these proceedings involving Jaden were brought. That definition provides:
“Custodian” means a stepparent or a relative within the fourth degree of consanguinity to a child who has assumed responsibility for that child, a person who has accepted a release of custody pursuant to division IV, or a person *32appointed by a court or juvenile court having jurisdiction over a child. The rights and duties of a custodian with respect to a child are as follows:
a. To maintain or transfer to another the physical possession of that child.
b. To protect, train, and discipline that child.
c. To provide food, clothing, housing, and medical care for that child.
d. To consent to emergency medical care, including surgery.
e. To sign a release of medical information to a health professional.
All rights and duties of a custodian shall be subject to any residual rights and duties remaining in a parent or guardian.
Iowa Code § 282.2(11) (2003). Under the facts of this case the only part of the definition of a “custodian” within which April could arguably fit would be “a relative within the fourth degree of consanguinity who has assumed responsibility for [Jaden].” However, for two reasons I do not believe she “assumed responsibility for” him within the meaning of the statute. First, the juvenile court in fact removed full responsibility for Jaden’s care from April and placed it with Leah. Second, although April (together with her grandmother) apparently provided daycare for Jaden, if by providing a child’s daycare a person becomes a “custodian” of the child, a child’s daycare provider becomes a necessary party to a termination of parental rights case involving the child, entitled to notice and an opportunity to be heard. See Iowa Code §§ 232.112(1) (stating persons listed in section 232.111(4) shall be necessary parties, entitled to notice and an opportunity to be heard) and 232.111(4)(b)(3) (stating a petition for termination of parental rights shall include the names of any custodian of the child). I do not believe the legislature intended that a child’s daycare provider be a necessary party to a proceeding to terminate the parental rights of the child’s parent or parents.
Finally, the last unlettered paragraph of section 232.2(11) distinguishes a “custodian” from a “parent” by providing that the rights and duties a custodian shall be subject to any residual rights and duties remaining in a parent. This clearly implies that when a court has removed legal custody of a child from a parent that parent is not a “custodian” unless appointed as a custodian as provided in the first unlettered paragraph of section 232.2(11). That did not occur in this case.
VOGEL and ZIMMER, JJ., join this special concurrence.