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Understanding Residential and Legal Custody of Children in New York

If you have “custody” of your children, what does that mean?

If you’re just starting the process of divorce or a custody proceeding, you probably think custody is pretty simple, at least in concept – it means the children live with you, and the other parent gets to visit with them sometimes. But custody is actually much more complicated than just deciding where the children primarily reside. Most of our new clients and consultations are surprised to hear that New York law differentiates between two types of custody, both of which must be resolved entirely between parents: residential custody, and so-called “legal custody.”

Residential custody is what most laypeople think of as “custody.” It is, simply put, how parenting time is divided between two parties. Oftentimes, this means that one parent will be with the children more than the other parent – they will be the children’s “residential parent.” But this does not mean that the other parent is relegated to seeing the kids every other weekend. There is a wide gulf between the every-other-weekend parent and the parent who has exactly equal time, and the non-residential parent may conceivably be with the child 49% of the child’s time, to the residential parent’s 51%. For example, the parties may alternate by week, with one parent getting an extra day every two weeks. The possible schedules are limited only by the parties’ ability to agree and by the court’s creativity.

Does there need to be a residential parent in every case? Well, yes and no. No, there does not necessarily need to be a parent who has the child more than the other parent. 50/50 schedules are in fact relatively common. But here is the wrinkle – the identity of the custodial parent determines who receives child support, and who pays it. The custodial parent will always be the parent who gets support, regardless of the incomes of the parents. And the default in 50/50 cases is that the custodial parent, for child support purposes, is the parent who earns less. Sometimes, this legal fiction can cause a case to get very complicated, very quickly.

For example, let’s say a mother makes $100,000 a year, and a father makes $50,000. The father may strongly feel that he is the more appropriate custodial parent, but be willing to compromise with the mother and split their parenting time equally. The mother, however, has a lot to lose in this compromise, because an equal split means she must pay child support, something she does not want to do. And so she decides to fight for more than 50% time with the child to avoid a support obligation. The father, meanwhile, already felt he was compromising with an equal split, so he is not inclined to give the mother any more time. That’s a recipe for a long and ugly custody fight.

That’s one type of custody. The other, and the type of which many laypersons are unaware, is known as “legal custody.” Think of this as the right to make decisions for a child. In New York, legal custody of a child is composed of three parts: the right to make decisions pertaining to the child’s education; the right to make medical decisions for the child; and the right to make decisions regarding the child’s religious upbringing. Technically, legal and residential custody are unrelated. From a legal perspective, a parent could be a child’s residential custodian without having decision-making authority. However in practice, if a parent has residential custody of a child they will often have either joint or sole decision making authority over that child, barring extenuating circumstances.

Joint legal custody is actually very common for former spouses who have the ability to get along and co-parent effectively. Alternately, one parent may be granted sole decision making rights in one area (say, education), while another parent may have it a different area (like medical care), or one parent may have decision making authority in all areas. A court will consider a wide variety of factors in determining the legal custody of a child, including whether the parties are able to co-parent effectively, whether one of the parents has evinced particularly poor parental judgment in some way, or whether one of the parents has unusual expertise about a certain area.

In sum, any divorce or custody proceeding involving children is going to involve a determination of both residential and legal custody. While these two issues intersect in interesting and varied ways, they are nonetheless two distinct and individual sets of legal rights. One more takeaway: only residential custody has a bearing on who pays child support.

Check out more of our coverage on child custody and visitation issues at this link.

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