Legal Question in Family Law in New York

Re: Sole Custody & Joint Custody

A parent who has sole custody of the child or children following the divorce (or separation) has both physical custody of the children and also sole decision making authority over the children's education, discipline, religious upbringing, and medical care.

In sole physical custody (which has also been termed "residential custody") the children live exclusively with that sole custodial parent (except, perhaps, for short visits with the

non-custodial parent in accordance with the

non-custodial parent's visitation rights, e.g., every other weekend and one weekday evening).

In joint custody, both parents share responsibility for decisions regarding the child's (or children's) religious upbringing, education, medical care and discipline. This shared responsibility for decision making as described above are the minimum criteria for a joint custody situation.

Joint custody may or may not also include shared physical custody, i.e., circumstances where the children alternate equally or substantially between living with each parent.

Note that joint custody is not provided for by New York statutes but is instead a product of court decisional case law precedent.

Courts generally deny joint custody in circumstances where the parents have different, incompatible views concerning the children's upbringing and/or in circumstrances wherein the parents are antagonistic towards each other.

However, at least two court decisions have awarded LIMITED joint custody pertaining ONLY to decisions regarding the children's citizenship and citiizenship, despite the parents' severe mutual antagonism. The cites for these two cases are as follows: (1) 240 A.D.2d 928, 658 N.Y.S.2d 548 (3d Dept't. 1997); and, (2) 136 A.D.2d 178, 526 N.Y.S.2d 95, (1st dept. 1988).