The most important decision that parents who are divorcing must make is who gets custody of the children. Even in a contentious divorce, the interests of the children should be at the forefront for the parties. New York law expects that, in most circumstances, both parents shall have the responsibility of bringing up their children and should work together to establish a parenting plan that works for everyone: parents and children. There are different ways that custody can be structured. If the parents cannot agree on a plan, the Court will order custody according to what it determines is in the best interest of the children.
Physical Custody: Primary or Joint
The parent who has primary physical custody, also known as residential custody, is the parent with whom the children live for the majority of the time. That parent is responsible for the daily physical care and supervision of the children.
The judge may grant the parents joint physical custody. This means the children live close to 50 percent of their time with each parent. The parent in whose home the children are living with at the time is the parent responsible for the physical care and supervision of the children.
Legal Custody: Sole or Joint
The parent who has legal custody of the children is the one who has the right to make major decisions about the children’s care, including the medical care they receive, their religious upbringing and their educational choices.
If the parents have joint legal custody of their children, they will make important decisions about the children together. This includes decisions regarding education, health care and religion. This is true no matter which parent the child lives with.
If one parent has sole legal custody, that parent has the right to make major decisions for the child without consulting the other parent.