The term “physical custody” or “residential custody” is who the child(ren) live with primarily (i.e., over 50% of the time by looking at overnight stays and “waking hours”). There are two main options with physical custody:
(1) Primary Physical Custody with Visitation to the non-custodial parent – Primary physical custody to one parent while giving the other parent reasonable visitation/parenting time; or
(2) Joint Physical Custody – Equal parenting time to both parents.
In determining who will be the custodial parent, the court looks at the “best interest of the child” factors. Courts in New York will not typically grant joint physical custody (or “shared physical custody”) unless both parties consent, because courts in New York typically favor the child(ren) having one primary “home” for stability.
As you can imagine, joint custody is complicated for logistical reasons. Often joint custody arrangements turn into primary physical custody situations upon a modification simply because the joint custody is impractical and does not work for the parties. For example, in a relocation case where there was originally joint physical custody, the court modified custody to award the father primary physical custody based on the mother’s request to relocate to Connecticut (while the father had continuously resided in Saratoga, New York). See Dickerson v. Robenstein, 68 A.D.3d 1179 (3rd Dept., 2009). Joint physical custody is most typically applied to cases where the parents live in the same locality and it is easy to transport the child back and forth between the parent’s homes.
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