Written by attorney Pashan Movasseghi

Physical Custody vs. Legal Custody of a Child in New York

I am a New York attorney. Criminal and family matters comprise the bulk of my practice. Having handled hundreds of cases, I have been presented with a wide variety of issues and questions. In the arena of divorce/family law, one of the most common and the most confusing issues to clients is the difference between physical and legal custody of a child. This issue is often further confused when the term "joint custody" has been thrown about. Consequently, many parents enter into agreements for joint custody, not fully understanding the limits such an arrangement places on their ability to parent their child. This article provides a brief explanation of, and attempts to distinguish, the terms "joint custody", "legal custody" and "physical custody". Custody of a child can be generally conceptualized as having two components. Those are legal custody and physical custody. Legal custody refers to the power to make decisions on behalf of the child. Such decisions may include (but are not limited to) decisions regarding the child's religious upbringing, medical needs and education. Physical custody is simply a determination regarding with which parent the child will reside the majority of the time. Where parents are litigating or otherwise attempting to resolve the issue of custody of a child, joint custody is often raised as a possible solution. On its face, the term joint custody seems like a fair solution to many parents. Many believe that if parents have joint custody of a child both parents will have equal parenting rights. This is rarely the case. In my experience, regardless of how close the time the child spends in the care of one parent or the other comes to being evenly balanced, one parent will have more parenting time than the other. That parent will be considered by law to have physical custody of the child. That parent will also be entitled to receive child support. So, what is really being discussed when joint custody raised is joint legal custody (joint decision making power). Where parents share joint legal custody of a child, they must make joint decisions on behalf of the child regarding issues such as those mentioned above. An obvious problem can and often does arise where two parents share joint legal custody of a child. That is, when a decision must be made on the child's behalf and the parents don't agree. For example, one parent may wish the child to attend public school and the other may wish the child to attend a private school. Given the potential for such a stalemate, one parent will typically be designated as having "final decision making authority". So, where an agreement cannot be reached, the parent with such authority has the final say. Generally, the parent who has physical custody of the child will also be the parent to whom final decision making authority is entrusted. It is of critical importance that parents fully understand the components of custody and the ramifications thereof before litigating or agreeing to any custody arrangement. As always, it is recommended that an experienced attorney be consulted before commencing any such negotiation or proceeding. THE INFORMATION CONTAINED HEREIN IS NOT LEGAL ADVICE. It is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction. Reading this article does not create an attorney-client relationship or otherwise require further consultation. Attorney Advertising.

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