What is the Difference Between Legal Custody and Physical Custody?

When you talk about Custody you talk about two difference precepts of law. There is legal custody which involves decision making as to the subject children. Then there is the question of physical custody which is where the children will reside.

When you talk about legal custody you talk about which parent has the right to make such major decisions about the children in a New York Divorce case. These decisions are things like what religion will the children observe, what doctors will the children have, and where will they live and go to school.

Physical custody has to do with where the children will be primarily situated. If you cannot decide who will have legal custody or physical custody, then a judge will have to decide which parent is best fit to make legal decisions. Often times they will appoint an attorney for the child who will represent the wishes of the child. The parties can also consent to joint legal decision making.

There are many factors used by the judge to decide who is the best parent to have legal and physical custody. Some of these factors are who is the primary caregiver, how long the children have resided with one or the other of the parents, whether there are siblings, whether there are mental health issues, whether there are drug abuse issues, where the child wishes to reside, and whether there has been domestic violence. If there are siblings the court must also consider that as one of the factors in rendering a decision on custody.

Paternity and Father’s Rights

A lot of my clientele ask me about paternity, especially if they suspect that they are the father of a child.

The rules regarding paternity are complex and important to understand because they have serious consequences as to your obligation to pay child support and your right to custody or visitation once you are declared the legal parent of a child.

A person has standing to ask the Court to acknowledge or disavow their paternity by seeking an Order of Filiation if the child was not born during a marriage, there is no order of filiation, and no Acknowledgement of paternity. Under these circumstances the person who guesses he is the Father has an absolute right to blood testing and a hearing where he alleges that the parties engaged in intercourse during the relative period of conception.

If all showings in petitions are adequate then the Support Magistrate should order blood or DNA tests of all parties and the child and adjourn the case to another date. When the parties return to court, the test results should be explained by the Court. The blood or DNA tests may exclude or include both competing fathers as the man as the biological father or may show how probable it is that he is the father.

After step one is completed, there must be a best interests analysis to be determined through a hearing in NY Family Court. All parties must be represented, including the mother, and all interested potential fathers. Also the child should be appointed an attorney. This is true especially where the child has a relationship to one or both of the potential fathers.

There are other more complex facts that would allow a person to seek paternity, such as when a person was led to believe they are not the Father and the alleged father relied on these false allegations to his detriment. This is called equitable estoppel and it is up to the court tin this instance to decide whether the legal father should forgo his rights in the best interests of the child.

Once you are determined to be the legal Father then the Mother may sue for child support and you may sue for custody or visitation.

Do Grandparents Visitation Rights have an affect in New York?

The answer to this is not simple. New York can grant grandparents visitation under certain circumstances where equity demands that it is necessary to ensure the best interests of the children. For instance, if one of the children’s parents is deceased such that the child is not being permitted to see the grandparent through the surviving parent the the Courts have the right to intervene on a custody petition and award visitation . There is also case law that suggests that if it is in the best interests of the children, and if certain thresholds are met that grandparents may have visitation rights. However it is presumed that the natural parents always have superior rights to the children.

Warning: The information contained herein is not intended to substitute for legal advice from your own retained lawyer in new york state. This article is merely informational in nature, and is based upon one attorney’s knowledge of the practice of family law, matrimonial law, domestic violence, child custody, child support and orders of protection.