Matrimonial and Family Law Blog

Wednesday, March 29, 2017

Legal Custody vs. Physical Custody Under NY Family Law

Divorce is a very emotionally draining affair for both spouses and their children. Issues such as property rights only complicate matters more. Perhaps the most polarizing issue in many divorce proceedings is the issue of child custody.

What Is Custody?

Custody is legal responsibility to care for a child. It is primarily awarded for children below 18 years.

Divorcing parents who have failed to agree on a reasonable custody agreement will approach the court to determine each parent’s custodial responsibilities. The court will do this with a strong consideration of the best interests of the child.

The court will grant two aspects of custody: legal custody and physical custody. The two types are very different and will not necessarily be granted solely to one parent.

What Is Legal Custody?

Legal custody is concerned with the rights and responsibilities to make the major decisions concerning a child’s future. These include decisions regarding a child’s education, health, safety, welfare and religious upbringing. The parent with legal custody gets to determine where the child schools, where he goes for medical treatment and even what religion he/she grows up following.

Legal custody can be awarded to one parent such that he/she has sole legal custody. In such an event, that parent will have sole decision making authority over the child. The other partner may contribute as a parent but the choice ultimately lies with the parent who has sole legal custody.

The court may also award joint legal custody. In this case, both parents have legal custody over the child. Therefore, decisions about a child’s health or general welfare will have to be decided and agreed upon by both parents.

Sometimes, legal custody can be structured such that one parent has legal custody over certain decisions while the other has legal custody over the remaining matters.

What Is Physical Custody?

This boils down to actual physical care and control of a child. It pertains where the child lives, where he/she calls home, who has the responsibility to care physically for the child and to supervise him/her.

The court can award sole physical custody or joint physical custody. Sole physical custody will have the child living with one parent, primarily known as the custodial parent, who will provide care and supervision over the child. The other parent, the non-custodial parent, gets visitation rights.

Joint physical custody will have both parents get shared physical custody over a child. This means that the child will live with both parents at different times, say with the dad one week and the next week with the mum, and so on.

Despite its name, joint physical custody does not have to be equal. The court can, and often does, structure it such that one parent gets more time than the other parent.

In determining whether to, in favor of whom and in what form to give legal and physical custody, the court is guided by such factors as:

  • The age of the child
  • The social and developmental needs of the child
  • The health of the child
  • The parents’ ability to care for the child
  • The parents’ employment status
  • The need to have a child grow up with his/her siblings

Custody matters are very complex. No matter how much a family court tries to reconstruct a child’s history and living conditions to determine their best interests, only the parents can personally understand their child’s needs. And when an order is finally given, it’s the parents who will have to explain it to their children.

If you are going through a divorce contact the law offices of Gassman Baiamonte Betts, PC today at 516.228.9181.


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