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Child Custody Primer

Posted by attorney Anne Bryant

Child custody is the most emotionally charged aspect of getting a divorce.

Under New York Law, the “best interest of the children" is the legal standard used to determine which spouse should have primary physical custody of the children. There are two forms of custody that courts consider; legal and physical.

Legal custody refers to who will make important decisions for your children with regard to their health, education, activities and religious upbringing. Legal custody can be granted to one or both parents. Parents can also be in control of certain “zones" of decision making, for example the mother makes final medical decisions on behalf of the children and the father makes final educational decisions on behalf of the children.

Physical custody refers to where the child actually resides most of the time. One parent may have physical custody, but only joint legal custody. It is possible for both parents to have physical custody, which means the children will split their time and reside with each parent for an agreed and equal amount of time. The non-custodial parent will have visitation or “parenting time" with the child or children.

It is important to note that courts today lean strongly towards joint custody unless there are extreme circumstances such as child abuse or untreated addiction or mental illness.

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