Physical Custody in New York Cases

Where a child lives goes by several names, but the legal term is physical custody.  Courts and parents sometimes refer to physical custody as residential custody, and the parent who has physical custody as the custodial parent or primary caretaker.

Determining Physical Custody

When determining which parent should have physical custody, the courts look at the best interests of the child.

The court is more inclined to grant physical custody to the parent who would foster a positive relationship between the child and the other parent.  The court also looks at the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent.

No one factor is determinative and the court will look at each of the factors together after a hearing on the issue.

Where to File for Physical Custody

A parent can file for physical custody in Family Court using a custody petition or in Supreme Court as part of a divorce proceeding.  When filing in Supreme Court, it is common to include a request for physical custody in a pendente lite motion.  By including physical custody immediately in the motion, it sets the tone for the rest of the divorce and provides stability for your child.

Why is Physical Custody Important?

Physical custody is important for many reasons.  The parent who has physical custody is able to make the day-to-day decisions for the child, such as what they wear, eat, and time they go to bed.  A custodial parent has a greater ability to ensure their values are being taught to child.  If the custodial parent wishes to place a preference on school work over team sports, then by having the children a greater percentage of time allows for the parent’s wishes to be met.   

If a parent is worried about their child eating healthy meals, by being with your child more, the parent has more control over what they eat.

Physical custody also plays an important part in where your child goes to school.  To enroll your child in public school, they often need to reside in the local school district. 

Physical custody is also important for child support purposes. The custodial parent is the parent who is awarded child support.

What Are the Different Types of Physical Custody?

A parent has sole physical custody when the child lives with the parent more than 50% of the time.  The parent with sole physical custody is responsible for the everyday care of their child when he, she or they are with you and the decisions that affect that care.

A judge can also order shared physical custody.  In a shared physical custody situation, the child lives with both parents close to an equal amount of time, given the reality of the situation.  This means that the split between both households does not need to be exactly 50%, but close to it. Shared custody need not be equal.  For example, if a child needs to spend more weeks with one parent because the other is away on vacation or has a work event, this will not change the shared joint custody situation.

Shared physical custody may be appropriate where there is no concern regarding the living arrangements or fitness of either parent, and where there is a sound, substantial basis for a finding that a shared custody arrangement is in the best interest of the child.

Using Technology in Physical Custody Cases

If there is a concern that one parent is not home, IP addresses and Google location information can help the other parent prove the case.  Our firm has subpoenaed Google and other tech companies over 100 times for similar information and is experienced at reading and analyzing the subpoena responses.

Physical Custody does not need to be Decided in Court

Our seasoned litigators are ready to go to court on your behalf.  Parents always have the right to settle physical custody without the need for a judge involved.  By drafting a strong physical custody agreement, you can control what happens in your case rather than leave it to the hands of a judge who is not familiar with your daily life.  

Daniel Szalkiewicz and Cali Madia are Dedicated Physical Custody Attorneys

Daniel Szalkiewicz and Cali Madia understand how important it is for you to be able to tuck your child in at night.  We help you fight for what is in your children’s best interest and to create the home life you want.