Child Custody: The Difference Between Legal Custody and Physical Custody

Child custody can be a difficult topic for parents to discuss. Before appearing in New York family court, it is imperative that both parties understand the definitions of legal custody and physical custody.

Legal custody designates who will have the legal authority to make decisions on behalf of the child. Where the child will go to school and what religious upbringing the child will have are examples of the types of decisions involved. Options of legal custody include sole legal custody and joint legal custody. In the case of sole legal custody, the court designates one parent as having the legal authority to make decisions on behalf of the child. Conversely, a joint custody arrangement gives this legal authority to both parents. The court usually orders a joint custody arrangement where both parents equally share the legal authority.

Physical custody, also sometimes referred to as residential custody, defines where the child lives the majority of the time. There are two common types of physical custody.

Sole physical custody means the child physically resides in one location with the court-appointed parent. Unless it has been proven that it is not in the best interest of the child for any reason, the non-custodial parent has visitation rights. These visitation rights outline how often and under what conditions the non-custodial parent can spend time with the child. Generally, visitation rights are generous and usually include sleepovers and vacations.

The child splits the time he/she lives with each parent in a joint physical custody arrangement. Joint physical custody is also known as shared custody. The child lives with one parent for part of the time, such as half a week or even half a year, and with the other parent the remainder of the time. It is important to understand that sharing joint legal custody does not automatically mean parents share joint physical custody.

A lesser-known and relatively new concept in child custody is Bird's Nest Custody. In this situation, the child remains in the family home, but the parents set up separate residences and share their respective visitation time with the child at the child's home. Some parents prefer this arrangement because it results in a less disruptive alternative for the child. However, it can also be an expensive option since the parents are responsible for supporting three households.

For the best advice to limit the stress of custody hearings, contact us. One of our experienced and knowledgeable attorneys is ready to help you.

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