Physical Custody vs. Legal Custody
Custody is also divided into two distinct areas, physical and legal. The former, physical custody, is what most people usually think of when using the phrase “child custody.” It’s the matter of where the child lives. The parents, with the guidance of their attorneys, need to determine if the children will take turns with each parent, spending an equivalent time at each home. Or, will one parent be what’s called the “primary custodial parent?” The latter would be defined as full physical custody.
After this decision is made, there are a host of issues that follow it. In cases where one parent has full physical custody, what are the visitation rights of the other? It’s generally best if these rights are spelled out as specifically as possible. For example, saying the non-custodial parent gets the kids every other weekend is probably too vague. A good custody agreement would have tight language saying something to the effect of “Non-custodial parent will pick children up from school at 3 PM on Friday and return them home at 8 PM on Sunday.”
Decisions also have to be made on where the children will spend major holidays, the rights of each parent to take them on an extended vacation, and whether the terms of visitation will be altered during the summer when the kids are at home. Here too, the more specific the language can be, the less chance there is of disputes and misunderstandings later on.
Legal custody refers to decision-making authority in a child’s life. It could be something that’s day-to-day, such as the signing of a permission slip to go on a field trip or participate in an extracurricular activity. It could also be something major, such as a doctor advising a medical procedure and parental approval needing to be granted. Legal custody also refers to the right of parents to make decisions like what religion (if any) their child will be brought up in and where they will go to school.
It’s important to emphasize that the matter of joint or full custody does not have to apply uniformly throughout the final agreement. A prime example is a situation where both parents are upstanding citizens and fully capable of raising their children. However, what if the children’s school is only two blocks from one parent, while the other parent is 90 minutes away? A settlement agreement – or judicial decision – might reasonably determine that the child’s best interests are served by having one parent get full physical custody, but that both parents still share joint legal custody. In other words, the kids will live with the parent close to school, but both parents have an equal say in decisions.
The ideal solution is for the parents to work out an agreement through negotiation. Mediation – the use of an independent third-party to offer non-binding suggestions – can be a valuable tool in this regard. If the parents do not reach an agreement on their own, then the matter goes to court.
Experience You Can Trust
RFL brings over 25 years of experience to child custody matters. Our Long Island lawyers understand how to negotiate, mediate, and, when necessary, we know how to aggressively litigate. We believe our clients have the right understanding of their child’s best interests, and we make sure those interests are vigorously promoted throughout the process.
Contact us online or call (516) 212-9211 today.
