Physical versus Legal Custody in New York State

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New York recognizes two types of custody: legal and physical. Either or both types of custody may be sole or joint in nature. Additionally, more courts are recognizing the parents’ ability to negotiate their own terms and parenting plans so that the legal designations are not as stringent as they were years ago.

Legal Custody

Legal custody refers to the ability of the named individual to make important decisions regarding the child, such as where he or she lives, where he or she goes to school, the type of religious upbringing he or she has and the type of medical treatment that he or she receives. If one parent is given sole legal custody, this parent will have the sole right to make decisions about his or her children. If both parents have joint legal custody, they both have the right to make major decisions about their child’s life. Generally, if a court refers to “joint custody” it is typically concerning legal custody.

Parents may voluntarily agree to joint legal custody and the court will usually approve this designation. However, if the parents do not agree on who should be able to make these decisions, the parents must typically go to court and have a judge make a determination of who should make these decisions. The court will generally not impose joint legal custody on the parents because it may reason that if the parents cannot agree to who should make decisions that they would have continued difficulty in agreeing on decisions about their children. In a true joint legal custody situation, neither parent has the ability to override the other. If they reach an impasse, they may turn to a mediator to help them work through this issue.

Physical Custody

Physical custody is what most people think of when they hear the term “custody.” It is the person who has the child physically more often. There may be sole physical custody in which the child lives with only one parent. He or she may visit the other parent but does not live in another household. The court often declares one parent as the custodial parent and the other parent as the noncustodial parent.

There can also be joint physical custody. In these situations, the child may technically live in two households. He or she may live with one parent for a week and then with the other parent the next week. He or she may split his or her time between each household throughout the week. He or she may spend one month at a time with each parent. Joint physical custody can still occur even if the child is not with each parent 50 percent of the time. The court can determine how much time the child will spend with each parent or the parents may reach an agreement regarding this time distribution that the court approves. In these situations, both parents are considered custodial parents.


Most custody orders in New York include a visitation schedule unless the court determines that it is not in the best interest of the child. In some situations, a non-custodial parent may have such frequent visitation that it appears as though the parents have a joint custody agreement in place. However, even if both parents spend nearly equal time with their children, that does not mean that a joint custody agreement is in place. If the court orders one parent to be the custodial parent, this is the applicable legal agreement in place. In some situations, a non-custodial parent may have to make important decisions about the child when he or she is with him or her, such as whether or not the child needs to see a doctor. However, this decision also does not mean that the parent has legal physical custody. Each parent must make small decisions regarding the child when he or she is in his or her care.

Length of Custody Orders

A family court judge may make a temporary order while a divorce is pending. He or she may later make these instructions part of a permanent order in the divorce or related child custody case, or he or she may make adjustments based on new information or the evidence presented during a hearing on the matter.

However, custody orders in New York are not permanent. The family court has ongoing jurisdiction over the parties and the custody agreement. Either parent may seek to modify the child custody order if circumstances change.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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