New York Child Custody Law: So What Exactly is “Physical Custody”?

Rincker Law Family/Matrimonial Law Leave a Comment

Confused child with cutting paper parents, family problems, divorce, custody battle, suffer concept


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.

This is an excerpt from my new book “Onward and Upward:  Guide for Getting Through New York Divorce & Family Law Issues” available on Amazon, Kindle and iBooks. This is an except from the chapter I wrote with the talented Bonnie Mohr.  I also wrote the Chapter on Mediation, which also discusses mediation on disputes like this.  Not only am I a family law litigator, but I am also a trained mediator for divorce, child custody and visitation disputes, and commercial mediation. The book is chalk full of great advice on a myriad of family law issues ranging from prenups, child custody disputes, and divorce/annulments.  The book’s special sauce is that it has over 48 authors, including many nonlawyer authors, writing on both legal and nonlegal topics.  More info on the book can be found here.

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