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RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
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Experience:  Experienced in multiple areas of the law.
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what are the legal benefits of the sole physical custody

Resolved Question:

what are the legal benefits of the sole physical custody?
Submitted: 3 years ago.
Category: Family Law
Expert:  RobertJDFL replied 3 years ago.
Good morning, thank you for your question.

Sole physical custody simply means that the child or children will live primarily with that parent. The non-custodial parent is typically awarded visitation, which may be unsupervised or supervised.

This is not to be confused with legal custody, which is the right and responsibility to make decisions for the minor child/children -decisions about education, health, and religion, for example. The smaller "day to day" decisions (e.g., can the child go to the movies with their friend) will be made by the parent who is physically caring for the child at the time.

It is possible for a court to award sole physical custody to one parent, but joint legal custody to both. Alternatively, a parent could have both sole physical and legal custody., or parents could share both joint legal and physical custody.


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Customer: replied 3 years ago.
Is Custodial Parent (physical custody) given any preferences in the cases when parents disagree on major decision (education, medical, religion)? Who has the right to make the final decision if there is a need to make urgent critical decision and parties disagree?
Expert:  RobertJDFL replied 3 years ago.
A parent with physical custody is not shown preference when parents disagree on an issue (such as education, religion, etc), it strictly has to do with where the child lives.

In such situations, parents are encouraged to try to resolve the issue among themselves through other means, such as mediation, and the use of a neutral third party. If absolutely necessary, parents could go back to court to allow the judge to make the decision, however courts generally do not want to get involved. If the parents are constantly fighting over major issues, then it would be better for one parent to seek sole legal custody so that they can make all major decisions.

In terms of a critical decision, such a medical decision that must be made immediately, the parent with physical custody of the child at that time can make the decision (e.g., if the child is with the non-custodial parent on a visit and is severely injured, they do not need to consult with the other parent over what is best before seeking medical care).

Customer: replied 3 years ago.
What about relocation? Does parent with physical custody need permission to relocate if better job\living conditions are present?
Expert:  RobertJDFL replied 3 years ago.
Although New York law has no specific statute addressing the procedures of a proposed relocation, it is clear that the permission of the court is necessary to avoid the risk of violating the court order. It's against the law to interfere with court-ordered visitation rights, and moving out of state (or out of the country) without court approval would certainly amount to interference. Additionally, your custody agreement may actually require the custodial parent to give notice before moving out of the area.

Therefore, a custodial parent seeking to relocate should always give notice to the other parent to see if an agreement can be worked out. If not, then the custodial parent should seek to modify the custody agreement to allow for them to relocate with the child.

A custodial parent should never take the child and move a sufficient distance from the non-custodial parent so as to deprive that parent of regular, meaningful contact. Without the permission of either the Court or the other party, the custodial parent faces the risk of being forced to return to their prior home area to litigate the issue of the appropriateness of a relocation with the child/children.

New York’s highest Court, the Court of Appeals, in Tropea v. Tropea , 87 N.Y.2d 727 (1996), held that the right of a custodial parent to relocate is determined based upon a “best interest of the child” approach.

Accordingly, each relocation request must be considered on its own, with consideration of all the relevant facts and circumstances and with predominant emphasis on what outcome is most likely to serve the best interests of the child. While the rights of the parents are significant factors that must be considered, the rights and needs of the children must be accorded the greatest weight.

The factors the court will consider include, but are not limited to:

1.each parent’s reasons for seeking or opposing the move;
2. the quality of the relationships between the child and the custodial and non-custodial parent;
3. the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent;
4.the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move; and the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements.

Other factors enumerated by the Court of Appeals are:

1. the good faith of the parents in requesting or opposing the move;
2. the child’s respective attachments to the custodial and non-custodial parent;
3. the possibility of devising a visitation schedule that will enable the non-custodial parent to maintain a meaningful parent-child relationship:
4. the quality of the lifestyle that the child would have if the proposed move were permitted or denied;
5. the negative impact, if any, from continued or exacerbated hostility between the custodial and non-custodial parents;
6. the effect that the move may have on any extended-family relationships; and
7. any other facts or circumstances that have a bearing on the parties’ situation.
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 10266
Experience: Experienced in multiple areas of the law.
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