What Is a Child’s Legal Custody in a Divorce? 

A child’s legal custody relates to the parent’s rights and responsibilities over their child’s health, education, and upbringing. There are two types of custody: “joint legal custody” and “sole legal custody.” A parent with sole legal custody has the right to make all important decisions about their child’s upbringing, including medical care, schooling, and religious upbringing. 

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Joint Legal Custody

If a couple of divorces and they both share legal custody of their child, the judge will award them joint legal custody. This means that both parents will have a say in important decisions for their children, such as how to raise them. 

Sole Legal Custody

In New York, courts often award parents sole legal custody of their children. This is usually because one parent is considered unfit or incompetent to make decisions for their child, such as a parent who has a history of drug abuse or domestic violence. 

Physical Custody

In most states, the court will award a parent with primary physical custody of their child (or children). This means that the child lives with that parent most of the time. 

Some jurisdictions will also award the other parent shared physical custody, meaning that the child will live with both parents for a significant amount of the time. 

When the court awards this type of custody, it will typically consider the child’s best interests. This includes which parent is able to provide better educational opportunities for the child, how the parents are interacting with the child, and whether one parent is known to have abused or neglected the child in the past. 

If the court decides that a parent does not have the ability to care for their child’s well-being, the judge may order that the parent be removed from the child’s home or another residence. The removal order will include a detailed description of the reasons why the court believes the parent is unfit. 


In New York, a court will generally grant visitation to non-custodial parents or other caregivers who want to spend time with their children. This usually includes a court-approved agreement that sets out where and when visits will happen, for how long, and if the visits must be supervised by another adult. 

Relatives and friends of the child can also request visitation. They must prove that there are “extraordinary circumstances” to show that they should get custody in preference to a parent. These extraordinary circumstances include situations like surrender by the parent, abandonment, persistent neglect, or the parent’s unfitness or disruption of custody over an extended period of time. 

What is the difference between legal custody and physical custody?

In many cases, judges award joint legal custody to both parents. This is because most states prefer that both parents have a say in how their child will be raised, and a judge’s decision is always based on what the children’s best interests are. 

However, if one parent has a serious illness or injury that could prevent them from caring for their child, the court will order a transfer of custody to a parent who can better provide care. The transfer is known as a “decision-making custody order.”