Physical vs. Legal Child Custody

In New York, there is a difference between physical child custody and legal child custody. Physical custody refers to a determination as to which parent shall have the child or children physically residing with them, within their physical custody and control. Legal custody relates to whether parental responsibility will or will not be shared.

When you hear the terms “joint custody” or “sole custody,” these terms usually refer to a legal custody concept; parents may still share joint responsibility for their children (legal custody), irrespective of whether the child or children live most, or all, of the time with one parent (physical custody).

Sole custody is basically a situation where only one parent has full control to make decisions and to raise the child or children without input from the other parent. It is also an arrangement whereby the parent who does not have sole custody loses some parental rights. These might include such things as access to information from medical providers, or the educational system.

Joint Child Custody

In situations involving more important decisions, such as those which affect a child’s education, health, welfare and the like, parents with joint custody agree that they will confer with one another in advance when the need to make an important decision for their child arises. This allows both parents the opportunity to listen to the other’s thoughts and points of view, in an effort to make the best decision for their child, who is intended to ultimately benefit as a result of the dual input. This is important, as many child psychologists attest that children benefit more when parents have joint custody because both parents are more involved in the child’s life. As such, the child benefits from the unique, inherent strengths of his or her mother and father.

In a situation where a deadlock arises, the question of who is to resolve it must be addressed. Often, resolution is achieved by a provision in an agreement that settles the issue where one parent has the final say on an issue where they hold veto power. For example, if the mother is a teacher, she might have the final say on educational issues if the parties don’t agree. If the father is a physician, perhaps he will have the final say regarding the child’s medical care or treatment.

If You Can’t Agree…

If the parties are not able to agree on either of the above two approaches, a third party may be appointed to help the parents resolve their issue. The court – where a judge will make the decision for you – is a last resort for parents who are unable to agree on a child-custody issue.

At Nolletti Law Group, we understand how important your children are to you. We will work diligently to protect your relationship with your children – even in the most complex child custody cases.

How Child Custody and Parenting Time is Determined

As each family is unique, there is no set formula for parenting time in a New York divorce case. A court will look to determine what is in the children’s best interest, which may very well change over time. For example, small children generally need more frequent contact with each parent for shorter periods of time, while teenagers tend to do well with schedules that have fewer transitions and longer blocks with each parent. One of our experienced family law attorneys will work with you to assess your children’s needs, offering advice regarding different access schedules that have worked well for other families in similar situations.

In New York, our courts look to the best interest of the children to determine legal and physical child custody, both during and after divorce. Legal custody is defined as having the right to make major decisions for the children, such as decisions about their health, education, and religion. Physical custody is defined as where a child primarily resides. The parent who does not have physical custody will have parenting time with the children.

There are two general categories of custody cases:

  1. The unfit-parent scenario, and
  2. The comparative scenario.

Let’s consider the unfit-parent scenario first. If a parent has a mental-health, substance-abuse, or some other issue or issues which would render that parent unfit to parent the child or children, the other parent usually seeks to obtain physical custody for the benefit of the child or children. These cases usually involve the participation of qualified mental health and/or substance abuse experts.

The comparative scenario is usually a much more difficult case to prove in court. It is a situation in which both parents are fit to parent the child or children, but one parent believes that it is in the child/children’s best interests that for them to reside under their roof and their supervision. However, the other parent disagrees. In such cases, each parent undertakes to demonstrate to the court why they are right and the other is wrong, insofar as the children’s best interests are concerned.

Child Custody: The Role of The Attorney for the Child

The Attorney for the Child, formally known as “Law Guardian” in New York law, is usually appointed by the court in custody and visitation disputes. He or she is typically an attorney who is experienced in custody matters, and as such, their role is to represent the child’s interests.

Normally, The Attorney for the Child speaks with the child or children, and may also speak to either one or both of the parents. The Attorney for the Child may also speak with school personnel, a child’s therapist, the forensic examiner appointed in the case, or anyone else The Attorney for the Child considers appropriate to obtaining relevant and necessary information to enable him/her to state the child’s position to the court. If a child is too young to verbalize their thoughts, The Attorney for the Child may substitute his or her judgment and argue the position he or she believes to be in the child’s best interests.

At a hearing or during a trial, the Attorney for the Child has the right to call witnesses and to cross-examine on behalf of the child. Their role is to ensure that the court hears an unbiased view of what is in the child’s best interest, a view not colored by either parent promoting his or her own agenda.

A psychological evaluation in connection with contested child custody litigation might be one of the most nerve-wracking experiences of a parent’s life. One of our experienced family law attorneys can explain the process, and provide you a general outline as to how the parent interview typically unfolds, and what to expect. This will ensure that you are as comfortable as possible with the process, and that you know what to expect when you walk in the door for the evaluation.

Relocating with Children

Before allowing a parent to embark on relocating with children, a judge must make a determination that the move is in the children’s best interest. Such a determination would include crafting an access schedule that will allow for the same quality access time for the non-custodial parent and the children as was enjoyed prior to the move.

If the children move far enough to make the original parenting schedule impracticable, the non-custodial parent may be granted less-frequent, but longer blocks of time with the children, such as two weeks during summer or winter vacations.

A parent cannot go about relocating with children without the court’s permission, unless the other parent agrees to the move. If you learn that your ex-spouse is planning a move and has not sought court permission, you must contact your attorney immediately so that he or she can file the appropriate application with the court to prevent the move. The court will then generally hold a hearing to determine whether the proposed move is in your child’s best interest.

If you discover that a move has occurred after the fact, you must act fast in notifying your attorney so that they can file a petition to have the children immediately brought back to New York. Fortunately, we have interstate compacts that facilitate this process, but the key is to act quickly to get the process in motion.

At Nolletti Law Group, we know that you love your children, and many studies have shown that it is in a child’s best interest to have regular and ample access to both parents post-divorce. Our attorneys will act swiftly and decisively to make sure that you will remain the important part of your children’s lives that you should be.