Divorce 101, Part 5: Custody vs. Residency vs. Visitation

Divorce 101, Part 5: Custody vs. Residency vs. Visitation

The Differences Between Child Custody, Residency, and Visitation

One of the greatest concerns of divorcing parents is how to structure a happy, healthy, post-divorce life that allows each parent to have significant access to their child. To build this new life, you first need to understand the basic concepts of child custody in New York.

Legal Child Custody

Child custody has two components: physical custody and legal custody. Physical custody refers to a parent who has physical charge of the child in his or her home. Legal custody is when a parent has the legal authority to make decisions for the child in critical matters such as medical care or education.

New York courts largely favor joint legal custody, where parents share equal decision-making authority. However, it allows for sole custody in certain circumstances, such as when the parents are unable to communicate or reach a consensus concerning the child. A court also is likely to grant an order for sole custody when one parent is incapable of making appropriate decisions for the child due to:

• Poor mental health or a limited mental capacity

• Substance abuse

• History of domestic violence

Either parent may ask for legal custody of the child by filing a custody petition. The courts will weigh a variety of factors and make a decision based upon the child’s best interests.


Residency refers to the place where a child lives most of the time. Courts may also refer to this as “primary placement” or “residential custody”. The child may primarily live with one parent or the other or may share time equally between the two homes.


Visitation refers to the schedule that’s established to ensure that both parents have an opportunity to spend time with their child. Numerous studies have indicated that it’s beneficial for both parents to be equally involved in their child’s life. Thus, when one parent has sole custody or the child lives with one parent the majority of the time, courts generally favor frequent visitations unless such visits wouldn’t be in the child’s best interests.

Parents usually determine visitation schedules without the help of the court. But if parents can’t agree, the court will hold a hearing to decide on the schedule or determine whether and when visitation is appropriate.

Structuring Your Own Child Custody Agreement

With the help of experienced divorce attorneys, you and your spouse can create a child custody agreement and visitation schedule that works best for your family. You can negotiate almost every aspect of the agreement, down to even smallest details. No one in the process is likely to object to your agreement terms as long as you’re realistic and act in the best interest of the child.

The Clark Peshkin Method

Clark Peshkin handles child support modification petitions every day. We can provide advice, help you file your petition, or shepherd you through the process. If you’re seeking to modify your New York child support order and live in Western New York, please contact our office at 585.632.4186 (Rochester), 716.526.8508 (Buffalo) or 315.284.8093 (Syracuse). We would be happy to help you achieve the best outcome possible.