Written/Reviewed By:
Barry S. Kantrowitz, Esq.
Last Updated: Nov 2, 2018
Read Time: 3 mins
In decades past, sole legal custody of young children was routinely awarded to the mother under what was referred to as the tender years doctrine. Today, sole custody is rarely awarded. If you have a sole custody situation, it is important to understand what your rights and responsibilities are. If you are in the process of negotiating a parenting plan, it is imperative to understand these factors before having a judge approve it.
The difference between legal and physical custody
It is important to understand the difference between legal custody and physical custody, and the ways they can be combined in a parenting situation.
Physical custody refers to where the child resides, while legal custody refers to decision-making authority. New York and New Jersey, like most other states, now strongly favor continued contact between each parent and his or her child. Depending on the geographical location and other factors related to the situation of the parents, courts will usually award either sole physical custody with joint legal custody or join physical and legal custody so that each parent can share, as equally as possible, in child-rearing.
When is sole legal custody awarded in NY and NJ?
Though it was common in years past, it is now extremely uncommon that one parent is awarded both sole physical and legal custody. It happens most often when one parent is deemed unfit to care for the children or to make decisions for them. The non-custodial parent will then be limited to time-sharing visits unless the court finds that supervised visits or suspension of time-sharing entirely is warranted.
If you are the non-custodial parent in a sole custody situation, it is crucial to follow the court’s order and make every effort to keep interactions with your ex and children peaceful. If you have time-sharing rights, it is important to exercise them and to speak with an attorney if you believe they are being violated.
How is sole legal custody awarded?
Judges can make a custody determination in a litigated divorce or parenting case. The order would then be binding unless the parties agree to change it or go back to court to litigate a modification.
More commonly, judges enter an order approving a parenting plan agreed to by the parents. However, it can be difficult to modify a plan you regret unless there has been a substantial change in circumstances. It is therefore a good idea to have a child custody attorney review your proposed parenting plan before agreeing to its terms, especially if it could limit your right to participate in decision-making.
Protect parental rights in Bergen County and Rockland County
Parenting plans are entered into every day but that does not mean they should be taken lightly. Once approved, they are fully enforceable and difficult to modify if the other parent is not in agreement. If you do not yet have a plan in place, or need to find out your right to request a modification, speak with the NY & NJ child custody lawyers at Kantrowitz, Goldhamer, Graifman, Perlmutter & Carballo, P.C. today.
Additional NY and NJ custody resources:
- Justia, 2009 New Jersey Code Title 9 – Children – Juvenile and Domestic Relations Courts 9:2-4 – Custody of child; rights of both parents considered, https://law.justia.com/codes/new-jersey/2009/title-9/9-2/9-2-4
- New York Senate, Section 240 Custody and child support; orders of protection, https://www.nysenate.gov/legislation/laws/DOM/240
