father holding his daughter's hand

Can I Get Full Custody of the Children?

Lots of people initially insist that they want full custody. Custody is not a completely binary option where either parent has “full” custody. Custody can best be understood as a spectrum of options involving legal decision-making custody, physical/residential custody, and parenting time/visitation schedules. 

When most people indicate they want full custody, what they are really trying to say is they want primary residential custody of the children and either final decision-making or sole legal custody of the children. The other parent will, in almost all cases, still have some role in the children’s lives.

Understanding Child Custody 

Child custody is the legal and practical responsibility for the care of a child under 18. There are different aspects to custody, which include physical custody and legal custody.

Physical Custody vs. Legal Custody

Physical custody is where the child primarily resides and how the parenting time schedule is shared between the parents. In some cases, one parent has primary physical custody while the other parent has visitation or parenting time with the child on alternate weekends and one or two weekdays during the week. In other situations, the parents share physical custody of the child on an equal basis, but one parent is designated the physical or residential custodial parent for school district enrollment or child support purposes. 

Physical custody in the context of seeking “full” custody usually means that you are requesting that the child primarily resides with you and that your house is the child’s “home base” for most of the week, while the other parent has parenting time and access to the child.

In most cases, parents agree to share joint legal custody where they make any major decisions affecting the child’s health, education or welfare together. In cases where the parties cannot agree on major decisions or are unable to co-parent, one party may push for legal custody of the child. In some cases, that parent has to consult with the other parent before making a major decision and/or consult with the doctor or teacher if there is a relevant professional who can help make the decision, but if the parents still do not agree, the party with final decision-making gets to make the ultimate determination. In other cases, particularly those with domestic violence, substance abuse, or other serious issues, one parent is awarded sole custody of the child and makes all of the major decisions for the child without input from the other parent.

Is it possible for you to get full custody of your children? 

When parents are in a custody battle and cannot reach an amicable agreement regarding their child’s future upbringing, courts will typically make decisions using the child’s best interests standard. This is just what it sounds like — courts deliberate and make rulings based on what they believe will be healthiest for the child. While joint custody is the most common, there are a few circumstances in which a judge will make an exception. 

Here are a few elements that judges take into account when making custodial decisions:

  • History of abuse and/or neglect
  • A parent’s substance use (drugs and alcohol)
  • A parent’s mental and physical health
  • Child’s preference (particularly with adolescent children)

A judge will also look at the child’s established living conditions, the history of who cared for the child, the way the parties treat each other and the child during the divorce process and other factors to determine what is in the child’s best interest.

Seeking Legal Guidance About Child Custody

If you have children and are considering or are in the process of breaking up with your partner, it’s important to seek legal guidance about these issues. 

Contact Aiello & DiFalco LLP, a matrimonial and family law firm located in Garden City, New York. We have resolved many custody cases outside of court and have also brought cases all the way to hearings and trials to ensure that our clients, and most importantly their children, achieve the best possible result in the complicated area of child custody.