VIDEO: Difference Between Physical and Legal Custody in NY
I. WHAT IS LEGAL CUSTODY?
Legal custody is the ability to make decisions for a child, including medical, educational, and religious decisions. Joint legal custody is where both parents are granted legal custody of the child and expected to work cooperatively to make decisions for the child. Sole legal custody is where only one parent retains legal custody of the child.
II. WHAT IS PHYSICAL CUSTODY?
Physical custody refers to which parent the child primarily lives with. The parent who the child resides with for 51% of the time or more has primary physical custody. When both parents have exactly equal time with the child, 50-50, that is referred to as shared physical custody.
III. DENYING A PARENT VISITATION
Visitation is a joint right of both the noncustodial parent and of the child. Weiss v. Weiss, 436 N.Y.S.2d 862 (N.Y. 1981). It is presumed to be in a child’s best interests. Tanner v. Tanner, 826 N.Y.S.2d 503, 504 (3d Dept. 2006).
Accordingly, outright denial of visitation is considered a drastic remedy that it should be ordered only when there are compelling reasons, and there must be substantial evidence that such visitation is detrimental to the children’s welfare. Matter of Adam H., 195 A.D.2d 1074 (4th Dept. 1993); see also, Farhi v. Farhi, 407 N.Y.S.2d 326, 327 (4th Dept. 1978). Thus,
a parent may not be deprived of his or her right to reasonable and meaningful access to [his or her] children…unless exceptional circumstances have been presented to the court. The term exceptional circumstances or exceptional reasons is invariably associated with a situation where either the exercise of such right is inimical to the welfare of the children or the parent has in some manner forfeited his or her right to such access.
Strahl v. Strahl, 414 N.Y.S.2d 184, 186 (2d Dept. 1979) (citations omitted, emphasis added).
Importantly, the courts will not just consider the child’s physical welfare, but also emotional and psychological welfare: “Clearly, when the exposure of a child to one of its parents presents a risk of physical harm, a court should deny visitation…a parent’s visitation should just as clearly be denied by a court where it harms the child by producing serious emotional strain or disturbance.” Hotze v. Hotze, 394 N.Y.S.2d 755, 756 (4th Dept. 1977).
Although denial of visitation is considered a drastic remedy, it can be achieved under certain circumstances. Making or defending against a request for such denial must be taken very seriously.
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For more information contact Attorney Joseph P. Morawski at Melvin & Melvin, PLLC
