Visitation Vs. Custody Rights: Knowing the Difference

The number of children living with only one parent has continued to rise in the United States steadily. Information from the United States Census Bureau shows that in 1968, 11% of children lived with their mother only. Fifty-two years later, in 2020, this rate had almost doubled and now stood at 21%.

The same goes for children living with their father alone.

In 1968, the rate of children living with their fathers alone was 1%. In 2020, this rate had increased to 4.5%.

% of children living with father only1%4.5%
% of children living with mother only11%21%

Granted, these numbers are still low—fortunately. 

However, if these trends are anything to go by, we should expect more parents to disagree about visitation and custody—and going to court to press for visitation rights, custody rights, or both.

But what do these rights mean? And what are their legal implications in the realms of family law? 

Before we dive in, it’s good to know that family law and many other statutes vary from state to state. However, in most cases, the legal principles remain the same. The difference is mainly in the aspects of applications, procedures, and awards.

The jurisdictional focus of this article will be the state of New York.

Visitation vs. Custody: The Legal Meaning

Custody is about who will be in charge of the minor before they reach 18 years of age. It’s about legal authority and responsibility.

According to the court, a Custody Order determines how the child is brough up and gives responsibility for the care of the child.

This order is usually—but not always—given to one parent.

On the other hand, visitation is an order allowing a parent and close relatives access to the minor at certain defined times when they are not the legal custodians of the minor. 

Visitation vs. Custody: Who Can File for a Petition

While many believe that only the child’s parent can file for custody, this is not the legal position. According to New York family law, anybody can file a petition for custody. Of course, the parent will be given priority.

However, the law defines situations as “extraordinary circumstances”—when the court entertains a custody case that involves a parent and someone else who is not a parent. 

The following can file a petition for child custody:

  • The mother.
  • The legal father whose name is on the child’s birth certificate, who signed an Acknowledgement of Paternity, or who received an Order of Filiation from the court.
  • The spouse of the child’s birth mother
  • Relatives and friends in “extraordinary circumstances.”
  • In some situations, the domestic partner of the child’s birth parent, but there must have been a mutual agreement to conceive and raise the child.

On the other hand, the court can give a visitation order to any of the following persons:

  • One of the parents
  • The minor’s siblings or half-siblings
  • Grandparents

Types of Custody

While visitation is fairly straightforward, custody does not apply as uniformly. New York law recognizes two types of custody:

  • Legal Custody
  • Physical Custody

Difference Between Legal Custody and Physical Custody.

Legal custody confers the right to a person, usually one of the parents, to make key decisions that affect the child. Examples of decisions that a person with legal custody is authorized to make include:

  • The child’s religion
  • The church where the child should attend
  • The school that the child should attend
  • Where the child should live

On the flip side, physical custody does not confer decision-making authority. Instead, it only confers residential care of the child to an individual. In New York, physical custody is also referred to as residential custody.

What about awards?

This is how family courts in New York decide it.

Legal custodianPhysical custodian
Joint CustodyEqual involvement and consultations in decision-makingGrants the right to stay with a minor for 50% of the time.
Sole CustodyThe legal custodian will be responsible for all the important decisions regarding the child.Grants the right to stay with a minor for more than 50% of the time.

Therefore, if parent “A” wins legal custody but loses physical custody, they should be entitled to visitation unless there are circumstances that may make visitation dangerous to the child.

In determining custody, whether legal or physical, the court is guided by what’s in the child’s best interest. The concept of “best interest” has its legal foundations in Article 3 of the UN Convention on the Rights of the Child. This article states that:

How To File For Custody or Visitation in New York

Filing a suit involves a lot of legal technicalities. For people who want to file for custody or visitation in New York, it’s highly advisable to get an accomplished family law lawyer to guide you through the process. 

Nevertheless, the following information is essential.

Where To File a Custody or Visitation Case  

If the petition is an outcome of divorce proceedings, it should be filed at any of the 62 courts that constitute the Supreme Court of the State of New York.

If the custody or visitation petition involves unmarried parents or are married but are yet to formally initiate divorce proceedings, one of the parents can file a petition at the family court.

Divorced parents are also allowed by law to vary the custodial orders if there’s a substantial change in circumstance. Depending on the nature of the divorce decree, they’ll either go to the family court or the supreme court. 

In Which State Should You File a Custody or Visitation Case?

You should file your custody or visitation petition in the child’s “home state.” The child’s home state is where the child has most recently lived for a consecutive period of six months. Parents and petitioners can be exempted from this rule if the court is informed that the child is in danger of abuse.

Filing the Petition

After filing the petition, the court proceedings will begin. Should the parties reach an agreement in the process of court proceedings, the judge will not continue with the case. Instead, they’ll enter an Order of Custody on consent.

Should agreement be elusive and contested, the case will proceed to trial. The parties will present their arguments before the judge. The judge may also request an investigative report from such social services agencies as the Child Protective Services (CPS).

The judge will then decide the case based on court pleadings presented and the social services agencies’ reports if so ordered. The decision of the judge must be in the best interest of the child.

To determine what’s in the best interest of the child, the court may consider the following factor:

  • Age of parents
  • History of domestic violence
  • Financial resources of each parent
  • History of drug abuse of each parent;

Among other factors.

Do You Want to Petition for Custody of Your Child?

Though not the same, custody and visitations often occur when there’s divorce or separation between spouses.

Depending on the type, custody involves being with the child and directing the essential aspects of the child’s life. On the other hand, Visitation is the parenting and bonding time the court gives to the party that does not have physical custody of the child.

When your family is broken, you can feel as if the weight of the world has come crashing down upon you.  Petitioning for the custody of your child can be challenging, but you do not have to carry this burden by yourself. 

The experienced attorneys at Michael B. Schulman & Associates are here to help lighten the load. We handle all types of family law, and proceedings whether custody, visitation rights or even support proceedings.

Reach out to us today. We can help protect your interests.

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