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Nassau County Family Law Attorney
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Legal and Physical Custody in New York


A divorce is a very emotional time for the fact that a relationship is coming to an end. When there are kids involved in the level of emotion is increased significantly. If the divorce turns into a custody battle, it just gets exponentially tougher from there.

When dealing with custody, two issues to be addressed; namely physical custody and legal custody.

Legal custody has to do with the right to make legal and other major and long-term decisions on behalf of the child. This includes decisions on health care, both medical and dental, education, religious instruction, etc. In most cases, both parents maintain legal custody of the children. This is called Joint Legal Custody.

It is always the standard for the courts to utilize the best interest of the child when making a determination of both legal and physical custody. This includes allowing both parents to be a significant part of their lives, which is why Joint Custody is preferred. In cases where one parent is found to be unfit due to illness, addiction, history of violence, then legal custody will be granted to one parent. Joint legal custody may also be granted to one parent if it is shown that both parents are unable or unwilling to work together in the best interest of the children.

“The best interests of the child” is the central standard and is more often than not the gauge as to why certain decisions are made.

The other part of custody is Physical Custody. This is in regard to where the children will live and spend most of their time. Physical custody does not impact legal custody as they are two distinct things. However, it is unrealistic and really not in the best interest of the children to be told they have to move back and forth every week. The children need a stable lifestyle. This is why the non-custodial parent is given a fair amount of parenting time, formally called visitation. Parenting time will never be denied to a parent as it is their right to have their own time with their children. The exception to this is if there are mental issues or drug issues. In those cases, supervised visitation may be utilized.

Before the courts start to rule on legal and physical custody, the parents have the option of making their own parenting plans. This does not mean that the courts cannot make changes to any plan as needed. If the courts find, for instance, that one parent is bad-mouthing the other in an attempt to turn the children against the other parent, then the judge can make changes to custody and parenting time as needed.

As a couple in the process of divorce works through the myriad of issues including legal and physical custody, who is the one that is looking out for the best interest of the child? As this is the standard, then someone has to be actually representing the children. That person is the Attorney for the Child. These Child Advocate Attorneys are appointed by the court to speak for the child during a divorce involving a custody dispute. The AFC will listen to and speak for the children, and depending on their age and maturity, their preferences are taken into account by the court regarding custody. It is also important to know that courts are very reluctant to split children up. Siblings are a source of comfort and strength for each other and it is preferred to keep children together. While children’s preferences are taken into account, it is not the deciding factor.

Custody issues are always very emotional and can be very difficult for both parents. It is why even if you are able to work out most of the details regarding custody and your parenting plan it is important to have experienced representation. It does not take much to go from amicable to contentious when emotions are running high.

If you need assistance coming to an amicable agreement, or legal representation in a dispute over any aspect of child custody, either legal or physical, contact Anthony LoPresti at our Nassau County law office at (516) 252-0223.

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