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Navigating Custody Battles:  Understanding Legal and Physical Custody 

For most parents who find themselves in the unfortunate situation of fighting over custody of their children in court, it can be one of the most emotionally taxing experiences of their lives. On top of an already draining experience, it can be overwhelming for any non-attorney to fully understand the applicable legal nuances and vocabulary. Some of the intimidation inherent in going to court can be alleviated by familiarity with what is truly meant by the term “custody.”

Legal custody is the right to make major decisions about your child. Decisions that are “major” are typically considered decisions involving your child’s education, medical care, and religious upbringing. There is a strong preference for both parents sharing joint legal custody; sole legal custody is typically only appropriate where it has been made extremely clear that the two parents cannot communicate in any civil or productive way. For example, where one parent has been abusive towards the other, or has outright refused to communicate with the other parent about the child.

Joint legal custody may be preferable and appropriate, but it does leave open the question of what to do when the two parents do not agree. Often, the parents will be required to first have meaningful discussions about the decision at hand. If they still cannot reach an agreement, they might be directed to rely upon the opinion of a professional (for example, if it’s a medical decision, the child’s primary pediatrician or applicable specialist), or they may need to engage a professional mediator. Alternatively, one parent may be given final decision-making power. This power is often given to the primary physical custodial parent (the other type of custody), or each parent could be granted final decision-making power in one or two “spheres” of decision making – for example, dad could have final decision-making authority about education and religion, while mom has final decision-making authority over medical decisions.

Regardless of how legal custody/major decision making is structured, the unhappy parent always has the right to seek judicial intervention to reverse or stop the unilateral decision of the other parent, if the court finds it would be in the child’s best interest.

Physical custody is which parent the child primarily resides with, subject to the other parent’s visitation rights. This is often the more contentious part of the full custody determination. If the parents cannot agree which parent should have primary physical custody, the court will consider a variety of factors set forth in the Domestic Relations Law before deciding what would be in the child’s best interest. The non-custodial parent will be obligated to pay child support to the custodial parent.

A true 50-50 split of joint physical custody is only appropriate where the parents live close by, preferably within the same school district. If the parents do not live in the same school district, one parent’s residence should be specifically designated the residence to be used for the child for school purposes. Many judges will not order joint physical custody if the parents leave custody to be determined at a trial – if the parents can’t even reach an agreement on who the child should primarily live with, then joint physical custody is probably not in the child’s best interests.

This is not to be considered legal advice.  Please reach out to an attorney for information regarding your specific situation.


Rebecca C. Johnson is an Associate concentrating in matrimonial and family law.
She can be reached by phone at 845-764-9656 and by email.

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