When talking about custody, there are two parts – legal custody and physical custody.
Joint legal custody means the parents have to consult and agree on all major decisions involving the child, which include matters such as medical, religion, school, extracurricular activities. Sole legal gives one parent the sole decision making authority on these matters.
Joint physical (also referred to as shared physical) custody means that the parents usually split the custody of the child 50/50 or fairly equally. Where one parent has more than 50% of the custodial time with the child, that parent will be determined to have primary physical custody of the child, which gives that parent certain decision making authority in the absence of agreement, as well as certain tax credits absent some agreement.
Sole physical custody means one party has physical custody of the child with the other parent either having no time with the child or usually only very limited access to the child(ren).
Joint custody involves the sharing by both parents of responsibility for and control over their children’s upbringing, and imposes on the parents a duty to conduct themselves in a mature, civilized and cooperative manner in carrying out the joint custody arrangement.
There are two kinds of joint custody. Joint physical custody is where the children live alternately with both parents. Joint custody is based on the concept that a child’s best interests requires that important decisions regarding the child’s life be a considered determination of the parents and that the parents are capable of engaging in cooperative civil communication regarding the child. In joint legal custody, although the children actually live with only one parent, both parents continue to share the same rights and responsibilities as they did during the marriage to participate in the decisions affecting their children.4 In this situation, the day-to-day child rearing decisions are made by the parent with whom the child is living, while decisions with respect to the important issues, such as religious training, education and medical care, are jointly made.
In determining whether joint custody of a child can be awarded to the mother and father, if both parents are fit and the circumstances so warrant and it is found that the interests of the child are such that custody be not removed from either parent, the court may then grant custody jointly to both parents. Such an award is appropriate where both parents are fit and able to behave amicably, and can communicate in a harmonious and reasonable fashion. It is appropriate where the fit and loving parents possess a desire to share in the upbringing of their child and have demonstrated a willingness and ability to set aside their personal differences and work together for the good of their child. The parents must be capable of cooperating in making decisions on matters relating to the care and welfare of their children.
Where an award of joint custody is contemplated or sought, the court will consider the following relevant factors: the ability of the parents to cooperate in the rearing of their children; methods for resolving disputes regarding any major decision concerning the life of the child, and the parents’ willingness to use those methods; and whether it would be detrimental to the child if one parent were to have sole authority over the child’s upbringing. Where joint custody is awarded, it is done for the purpose of enhancing each parent’s ability to promote his or her child’s best interests.
Joint custody is unsupportable when parents are severely antagonistic and would work a disservice to the children. Joint custody should never be imposed where the parents are combative and simply unable to jointly address the best interests of the children as a direct result of their hostility toward each other. It is an abuse of discretion to award joint custody where the degree of acrimony between the parents is reflected by the extensive litigation and militates against such an award. Indeed, it was reversible error for a court to direct the drastic change in a child’s living arrangements that joint custody would entail without the benefit of a full hearing.
Source: Westlaw – Callagan’s Family Court and Law Practice New York
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