Child Custody in New York Family Court: Physical, Legal and Joint Custody

One of the fundamental distinctions in Family Law that often goes overlooked by the lay person and is only truly understood when a Family law attorney or New York child custody lawyer is consulted, is physical vs. legal custody as addressed in New York Family Court Act Article 6. Generally speaking, physical custody has to do with where the child or children primarily reside, and legal custody has to do with decision-making and child-rearing issues. While joint physical is fairly uncommon, due to the obvious practical difficulties for a child in many common circumstances, so-called “joint” legal custody is much more frequently ordered and/or agreed to. To a substantial degree, getting the visitation or “parental access” right is critical to making joint custody work.

Physical Custody and Visitation

Sometimes referred to as visitation, access, parenting time, or other colloquial terms, visitation is the schedule and time the non-custodial parent spends with the children, meaning the time that the parent who does NOT have physical custody spends with the child. Typically, this visitation schedule is agreed upon by the parents who come up with a calendar on their own, often with the assistance of their visitation attorneys in negotiations. Other times, the Court must step in and set a schedule that the judge believes to be in the best interests of the child when the parents cannot agree. In these latter situations, it is of critical import to have your Family Court lawyer advocating your position to best achieve your results.

With regard to the above distinction between joint physical and joint legal custody, it’s important to note that one does not need “joint custody” to have visitation or access, contrary to a common misconception. Joint physical custody essentially means that there is no “visitation” because the child is residing equally with both parents. With respect to legal custody, it is not necessary to have joint legal custody or any say in major decisions related to the child’s upbringing to have visitation or parental access rights with the child. This area of law is deep, complex, and filled with pitfalls for the unfamiliar parent without even taking into consideration all the practical, real-life complications of these co-parenting arrangements.

A Practical “Real Life Issue” of Visitation Agreements: Parental Communication

One such practical, real-life issue that is often overlooked by parents entering into a visitation arrangement is the conversations and communication that must take place between the parents to make any meaningful, reoccurring visitation work. Things come up in life, people get caught in traffic, or stuck at work later than expected, and communicating with the other parent when these kinds of issues affect pick-up and drop-off times seems simple and obvious enough. However, it rarely is. Whether the parents cannot help but disagree and argue whenever they are forced to have a live phone conversation, or whether lateness is a recurring problem for one or both parents, these real-world problems can have serious long-term effects on the child and the parents, both in terms of the relationships, and the long-term work-ability of a visitation arrangement and schedule.

Similar to the situation above where some parents cannot help but engage in unproductive arguments whenever they are forced to communicate via phone about some issue that has arise, the pick-up and drop-off may be essentially the only time that the two parents are physically together going forward. Therefore, it is often the only time that the child sees his or her parents together in person. Maintaining civility is obviously important, especially in the presence of a child or children, but this is often easier said than done. Taking the interpersonal dynamics of two parents into account when structuring a visitation system and schedule can be incredibly important, and easily overlooked by an inexperienced Family Law attorney.

When faced with these issues, that can have such a dramatic effect on your life, and the life and well-being of your child or children, it is extremely helpful to have the representation and guidance of an experienced Family Law attorney. The attorneys and lawyers at Crotty Saland PC represent parents in custody and visitation matters throughout New York City, Rockland County, Westchester County and throughout the Hudson Valley.

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