Legal vs Residential Custody: What Should You Know?

Legal vs Residential Custody: What Should You Know? by Joshua Katz

{3:05 minutes to read} When discussing custody with a client, it must be clear that there are two different facets: legal and residential.

  • Residential custody defines where the children will primarily reside; and
  • Legal custody concerns the decision-making authority for the children.

Generally, children will reside with one parent and visit with the other. The main issue to work out, with residential custody, is the parenting plan. How much time, and when, the children will visit with the non-custodial parent needs to be established.

Legal custody is often more difficult. If two parents can communicate effectively and civilly, they should be able to share joint decision-making. If not, then one parent will have sole custody. Shared decision-making can be difficult for a married couple, let alone a couple going through a divorce.

These rare, important, and life-altering decisions address the child’s education, religion, health, and general welfare. Whether it is sole or joint custody, parents should communicate and consult with each other prior to making such important decisions.

What happens if the parents do not agree? If they have joint custody, and do not agree, there needs to be a tie breaker, which will be worked out in a custody agreement.

The tie breaker may be:

  • The primary residential custodial parent, which is often the case.
  • Divvied up by spheres of influence, where one parent would have final decision authority in regard to religion, for example, and a different parent in regard to educational decisions.
  • An appointed third party, such as the school guidance counselor for education, the pediatrician for medical, or the Rabbi for religion.

Decisions like this don’t come up very often, and even if one parent has sole custody, it doesn’t mean the other parent can not have access. They can still be given access to report cards, or doctor’s reports, and still meet with teachers. But their rights have to be carefully defined within an agreement.

One final bit of advice for married couples: husbands need to learn to say, “Yes, dear.” It works for me! =)

When was the last time you discussed your children’s education, health, or well-being with your ex? Were you surprised to learn something about your child?

If you need someone to speak to about divorce, we offer a free phone consultation. Contact us at 718-268-0279 today!

Plaine & Katz, LLP
80-02 Kew Gardens Rd.
Suite # 1050
Kew Gardens, NY 11415



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