Defining Physical and Legal Custody in Rochester

In a legal context, child custody covers the care and raising of children produced by a marriage or children of an unmarried union that has since ended. In all scenarios and at all stages of the process, the standard the courts consider when deciding custody is the “best interests of the child.”

Physical custody determines where the child will reside most of the time. If one parent is granted physical custody, the court typically grants the child’s other parent a schedule of parenting time with the child. The parent who has primary physical custody is called the “custodial parent,” and the parent with a visitation or parental access schedule is called the “noncustodial parent.”

Legal custody refers to the right to make important decisions on behalf of the child, such as education, medical decisions, religious upbringing, and extracurricular involvement. Legal custody is usually shared jointly between a child’s parents and, barring extenuating circumstances such as domestic violence, that would make such an arrangement interfere with the child’s best interests.


Custody and Divorce Proceedings

For married couples, custody matters are usually settled during divorce proceedings. For unmarried parents or married couples who are separated but not ready to divorce, a family court judge can review and hear all available information and witnesses and issue an order based on the best interests of the child.

Mediation has become a popular tool for parents who disagree on custody issues. A specially trained mediator meets with the parents and facilitates conversations as a neutral party with the goal of attaining an agreement. Alternatively, you should seek counsel and negotiating expertise from a seasoned child custody lawyer in Rochester. In any event, a knowledgeable custody attorney can guide you through the process.

Additional Issues for Consideration

Courts consider various factors related to both parents when determining what is in the best interests of a child. These include but are not limited to:

  • Capacity and availability to care for their child
  • Job situation and available time to devote to caring for the child
  • Financial and domestic stability
  • The child’s relationship with each parent
  • Suitability of living arrangements
  • Geographic proximity to school, friends, etc.
  • The child’s wishes, if age-appropriate

In certain cases, New York Domestic Relations Law §240 and Family Court Act §71 and §72 allow grandparents—as well as others who have a close relationship with the child—to petition for visitation rights. At a family court hearing, the parties can offer evidence to demonstrate that visitation is in the child’s best interests and that denying visitation would be detrimental to the child.

Child Custody Modification and Enforcement

Child custody orders in Rochester are often subject to modification. To be successful in achieving such a modification, you must prove a significant and material change in your circumstances—or those of the child’s other parent—that renders it in the child’s best interest to change the terms of the order or affects your ability to care for the child. Common examples include a significant change in work schedules or the loss of a job.

If a parent violates the terms of the custody order, such as refusing to return the child at the end of a scheduled visitation, the other parent may institute proceedings for custody enforcement. The violator could be charged with contempt of court or possibly face kidnapping charges under Article 135 of New York Penal Law.

Call a Rochester Child Custody Attorney Today

If you are currently dissolving a marriage and have minor children, it can be beneficial for you to meet with a knowledgeable Rochester child custody lawyer.

Custody issues are complicated and emotional, but one of our experienced Rochester child custody lawyers can help you understand the options available to you and reach a custody agreement that works for you and your child. Call the Rochester office of Tully Rinckey PLLC today at 8885294543 — or email us at — to schedule a consultation.

Case Consultations