David P. Badanes, Esq.

When getting divorced, you may hear the terms: “residential custody”, “residential custodial parent”, “physical custody”, “legal custody”, “sole custody”, “joint legal custody” or “custody for child support purposes”. The following are the definitions of these terms.

“Residential custody” and “residential custodial parent” have the same definition. This is the parent where the children will spend the majority of their time, which could mean anything over 50% of their time. The parent who is deemed to have “residential custody” or to be the “residential custodial parent” will have the right to collect child support.

The term “physical custody” is rarely used, however, it means which parent has the parent with them, for either a specific time period or for more than 50% of the time.

“Legal custody” means which parent has the right to make certain legal decisions for the child. Typically, this means which parent gets to decide: (1) educational decisions; (2) medical decisions; and (3) religious decisions. The phrase “sole custody” means that one parent has “legal custody”.

“Joint legal custody” typically means that each parent has the equal right to make the educational, medical and religious decisions for the child. In situations where the parents cannot agree on these types of decisions there may be a mechanism for determining who has the ultimate right to make the decision.

“Custody for child support purposes” is typically used where the parents have joint legal custody and means which parent will have the right to receive child support.

In the vast majority of cases that are settled (i.e., not decided by a Judge), the parties will agree to joint legal custody. It is important to note that in some settled divorce agreements, the agreement will state that the parties have “joint legal custody”, but, will define exactly what that term means. In those situations, the definition of “joint legal custody” will be determined by the language in the divorce agreement.

In New York, if a Judge issues an order of custody, they rarely, if ever, will order joint legal custody, instead, the Judge will issue sole custody or legal custody to one parent.

If you are thinking of getting divorced and need more information about child custody, call David Badanes and the Badanes Law Office. Contact us or give us a call today at 631-239-1702. The Badanes Law Office has an office in Northport, Suffolk County and an office in Garden City, Nassau County.

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