Law Offices of Joseph S. Hubicki
Attorneys and Counselors at Law
call: (917) 538-7259
Child Custody and Visitation
The basics of custody can be explained with three concepts: legal custody, physical custody and parenting time for the noncustodial parent (also referred to as “visitation”). Legal custody has to do with major decisions regarding the child’s life. Decisions regarding such things as education, religion, elective medical procedures, extracurricular activities, and so forth, fall within the obligation of a parent with legal custody of the child. In general there is a strong preference that the parents have joint legal custody of the child. This means that the parents must consult with each other regarding major decisions affecting the child’s life. If the parents cannot agree, then the court can resolve the dispute, but more often the parties by agreement will elect a way. Physical custody refers to with whom the child resides, and visitation refers to physical access or parenting time with the child. Courts are required to apply one overriding principle when determining custody: “the best interests of the child.”
An award of sole custody to one parent is not supposed to cut the other parent out of the child's life completely. Sole custody gives one parent all responsibility for decisions regarding the child's health, education and welfare, but does not mean that the other parent is cut-off from all involvement and participation in the upbringing of the child. It does mean that if there is disagreement the parent with sole custody has ultimate decision making power. The non-custodial parent still has a right of access to the academic, medical, hospital or other health records of the child.
The term "joint custody" means that the parties the court has awarded legal custody of the minor child to both parents, providing for joint decision making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents. Such an arrangement is often agreed by the parents. Joint custody does not mean that legal custody and physical custody must always be equal. It is not uncommon for the parents to have joint legal custody, but for the child to live primarily with one or the other parent.
The term "split custody" refers to a situation involving more than one child in which one parent has legal and physical custody of some of the children and the other parent has legal and physical custody of the remaining children. Generally, separating siblings is not a preferred method, but such an arrangement is permitted by law.
There are a number of terms used to describe joint physical custody, including “shared,” “alternating” or “divided” custody. Shared custody merely refers to a situation where there is a schedule or method for alternating the time that the child spends with each parent. While this is generally a preferred method, each family presents a different set of circumstances and personalities. Not all families have the flexibility to deal with alternating schedules and shared custody arrangements. For some children, frequent shifts or having two primary homes may cause disruption in a child's life.