LEGAL VS. PHYSICAL CHILD CUSTODY

Any resolution of a child custody dispute in the New York State Courts, whether in Family Court or Supreme Court (as part of a divorce), will include both “legal” custody and “physical” custody.

“Legal” custody refers to a parent’s authority to make major decisions affecting the child. Legal child custody can be “joint,” “modified joint,” or “sole.”  For joint legal child custody, the parents are required to confer with each other about major issues and make good faith efforts to reach an agreement. If unable to agree, the parents have the right to mediate the dispute (if they can agree on that) or submit the dispute to the Court for determination. Major issues are customarily those pertaining to healthcare, education, and religion. With joint legal child custody, the child reaps the benefit of having both parents actively engaged in his/her upbringing.

“Modified joint” legal custody requires the parents to confer and make good faith efforts to agree just as in joint legal custody, but in the event an agreement cannot be reached, one parent is authorized to make the final decision. This authority can extend to all major issues or can be only for some. For example, one parent may have final authority over just healthcare decisions, or each parent may have authority over different areas. One parent could have authority over healthcare decisions and the other parent over educational decisions.

“Modified joint” legal custody usually arises when one parent is uncooperative or punitive toward the other parent, making an agreement unlikely. Also, one parent may have particular knowledge or experience about an issue that makes it reasonable for that parent to make the ultimate decision, when the parents can’t agree.

“Sole” legal child custody is also an option, although uncommon. This allows one parent to make the major decisions for the child without even conferring with the other party. Typical circumstances in which this could occur are when the parent left out of the decision-making is incarcerated, mentally ill, or impaired by substance abuse.

“Physical” child custody is the schedule of the child’s time with each parent. This can be as individual as each family requires. The child can be with each parent one week at a time, changing homes every seven days, or the week can be divided in any other way that serves the child’s best interests. Taken into consideration are the child’s needs, the parents’ respective homes, aptitudes, and work schedules, and any other relevant circumstances present in the family.

Both legal and physical child custody must be resolved, by agreement or court order, to ensure the child’s best interests are protected and the rights and obligations of the parents are clear.

If you need the services of an experienced child custody lawyer in NY, contact one of the attorneys at O’Connell & Aronowitz listed under “Divorce/Family Matrimonial” services.