5.1 Distinguishing Visitation & Custody

Visitation is the time that a parent spends with a child. Custody is the right to make decisions about a child’s life, such as where the child goes to school or what doctor the child sees. A person can have visitation rights with a child even if that person does not have custody rights.

Laypersons (and even some lawyers and judges) use the terms custody and visitation interchangeably. It is a misnomer to state that non-domiciliary parents have “visitation.” They have “physical custody” during their assigned custodial periods. Only non-custodial relatives and third parties have visitation. However, at times a client may only want “visitation,” but if the client is a parent, the client likely wants to give the other parent domiciliary status and to have only a set custodial plan for time with the child. In addition, the statutes sometimes use the word “visitation” interchangeably with “custodial time.”