Physical Custody in New York: Determining Where Your Child Lives

Physical custody, also known as residential custody, determines where a child lives and who makes the day-to-day decisions about their upbringing. It's a crucial aspect of any custody case in New York. Our dedicated family law attorneys at Veridian Legal can help you understand physical custody arrangements and advocate for what's best for your child.

What is Physical Custody in New York?

Physical custody refers to where a child lives and which parent has the primary responsibility for their daily care. The parent with physical custody is often referred to as the "custodial parent" or "primary residential parent." It's important to distinguish physical custody from legal custody, which refers to the decision-making authority regarding the child's upbringing.

Determining Physical Custody: The Best Interests of the Child

When determining physical custody, New York courts prioritize the "best interests of the child." This means that the court will consider a variety of factors to determine which parent is better equipped to provide a stable, nurturing, and supportive environment for the child. These factors include:

• Each parent's ability to foster a positive relationship between the child and the other parent

• The relative fitness of each parent

• The quality of the home environment

• The parents' financial stability

• The parental guidance provided to the child

• Each parent's ability to provide for the child's emotional and intellectual development

Where to File for Physical Custody in New York

Parents can file for physical custody in:

• Family Court: If the parents are not married or if they are seeking a custody order separate from a divorce.

• Supreme Court: If the custody issue is part of a divorce proceeding.

In divorce cases, it's common to include a request for physical custody in a pendente lite motion, which seeks temporary orders while the divorce is pending.

Why is Physical Custody Important?

Physical custody has significant implications for a child's life:

• Day-to-day decision-making: The custodial parent makes the daily decisions about the child's care, such as what they eat, when they go to bed, and what activities they participate in.

• Influence over the child's upbringing: The custodial parent has more influence over the child's values, education, and overall development.

• Stability and routine: Physical custody provides the child with a sense of stability and routine, which is crucial for their well-being.

• School enrollment: Physical custody often determines where the child attends school, as residency requirements may apply.

• Child support: The custodial parent is typically entitled to receive child support payments from the non-custodial parent.

Types of Physical Custody Arrangements

There are two main types of physical custody arrangements:

• Sole physical custody: The child lives primarily with one parent, who has the authority to make major decisions about the child's upbringing. The other parent typically has visitation rights.

• Shared physical custody: The child spends significant time with both parents, and both parents share in decision-making responsibilities.

The court will determine which type of custody is in the best interests of the child based on the specific circumstances of the case.

Using Technology in Physical Custody Cases

Technology can play a role in physical custody cases, as evidence from social media, emails, text messages, and location data can be used to support or refute claims about a parent's behavior or involvement in the child's life.

Resolving Physical Custody Disputes

Physical custody disputes can be resolved through:

• Negotiation and settlement: Parents can work together to reach an agreement that meets their child's needs.

• Mediation: A neutral third party can help parents communicate and negotiate a custody arrangement.

• Court hearings and trials: If parents cannot agree, a judge will make a decision based on the evidence presented.

Factors That Can Negatively Impact Physical Custody

Certain factors can negatively impact a parent's chances of obtaining physical custody, including:

• History of abuse or neglect: Evidence of child abuse or neglect will be taken very seriously by the court.

• Substance abuse or addiction issues: If a parent has a history of substance abuse, the court may be concerned about their ability to provide a safe and stable environment for the child.

• Unstable housing or living situation: A parent's lack of stable housing can raise concerns about their ability to provide a consistent and secure home for the child.

• Lack of involvement in the child's life: If a parent has not been actively involved in the child's life, the court may question their commitment to parenting.

• Criminal history or legal issues: A parent's criminal history or involvement in legal disputes can raise concerns about their character and fitness as a parent.

• Parental alienation or interference with the other parent's relationship with the child: If a parent is actively trying to alienate the child from the other parent or interfere with their relationship, this can negatively impact their custody case.

Preparing for a Physical Custody Hearing

If you are involved in a physical custody dispute, it's important to be prepared for a court hearing. Here are some tips:

• Gather evidence: Collect any evidence that supports your case, such as school records, medical records, character references, and documentation of your involvement in your child's life.

• Prepare to testify: Be prepared to answer questions from the judge and attorneys about your relationship with your child, your parenting style, and your ability to provide for your child's needs.

• Work with your attorney: Your attorney can help you develop a strong legal strategy and prepare you for the hearing.

Physical Custody and Child Support

Physical custody arrangements directly impact child support calculations. The custodial parent, who has the child the majority of the time, is typically entitled to receive child support payments from the non-custodial parent. The amount of child support is often determined by a formula that considers each parent's income and the percentage of time the child spends with each parent.

Physical Custody and Nesting Agreements

Nesting is a less common custody arrangement where the child remains in the family home, and the parents take turns moving in and out to provide care. This arrangement offers several benefits, including stability for the child, as their routine and environment remain consistent, minimizing disruption during a difficult time. Nesting can also reduce stress for children, as they don't have to pack and move between homes. Additionally, it can be more cost-effective than maintaining two separate households. However, nesting presents challenges as well. It requires a high degree of cooperation, communication, and flexibility from both parents. Coordinating schedules and maintaining separate living spaces for the parents can be complex. Emotionally, it can be difficult for parents to adjust to sharing the family home and transitioning in and out. Nesting may be a good option for families who are committed to co-parenting, can effectively communicate and resolve conflicts, have the financial resources to maintain the family home and separate living spaces, and are willing to be flexible and adaptable. It's important to note that nesting is often a temporary arrangement used during the transition period after separation or divorce. It's essential to have a clear plan for how and when the nesting arrangement will end and what the long-term custody arrangement will be.

Physical Custody and Relocation

Relocation cases can be complex, especially when physical custody is involved. If one parent wants to move a significant distance away with the child, the court will carefully consider the impact on the child's relationship with both parents. The court may modify the custody order to accommodate the relocation, or it may deny the relocation request if it is not in the child's best interests.

Enforcement of Physical Custody Orders

If a parent violates a physical custody order, the other parent can file a petition for enforcement with the court. The court can take various actions to enforce the order, such as:

• Ordering make-up parenting time for the aggrieved parent

• Modifying the custody order

• Holding the violating parent in contempt of court

It's crucial to comply with physical custody orders to avoid potential penalties and to maintain a positive co-parenting relationship.

Physical Custody FAQ:

• What if I want to relocate with my child? Relocation cases require careful consideration of the impact on the child's relationship with both parents. Courts will assess the reasons for the move, the distance involved, and the feasibility of maintaining contact with the non-relocating parent.

• How is physical custody different from legal custody? Physical custody determines where the child lives, while legal custody refers to the decision-making authority regarding the child's upbringing.

• Can the court order shared physical custody if one parent objects? Yes, the court can order shared physical custody even if one parent objects, if it is determined to be in the best interests of the child.

• How can I modify a physical custody order? You can seek to modify a physical custody order if there has been a significant change in circumstances that warrants a change in the custody arrangement.

• What if the other parent isn't following the custody order? If the other parent violates the custody order, you can file a petition for enforcement with the court.

• What if the other parent is alienating the child against me? If you believe the other parent is engaging in parental alienation, you can document the behavior and present evidence to the court.

• How can I prove I'm the better parent for physical custody? You can present evidence of your strong bond with your child, your stable home environment, and your ability to provide for your child's needs.

• What if I have to travel for work? You can work with the other parent or the court to create a parenting plan that accommodates your work travel schedule.

• Can I move out of state with my child? Relocation cases are complex and require careful consideration of the child's best interests. It's important to consult with an attorney before making any decisions about relocating with your child.

Contact Veridian Legal for Physical Custody Matters

Physical custody cases can be complex and emotionally charged. Veridian Legal's experienced attorneys can provide the guidance and support you need to navigate this process and protect your child's best interests. Contact us today for a consultation at (212) 706-1007 or info@nycfamilyattorneys.com.