Child Custody

Parents want nothing less than the very best for their child. This is true whether the couple remains married or takes a different path; one towards divorce. If you are facing divorce, one of your primary worries is likely, “how is this going to impact my children?” This is a normal, and completely understandable, question.

In order to start to make sense of what lies ahead, you need some basic information about New York custody laws.

Custody, Defined

To begin, the term “child custody” or “custody” refers to two separate items: (1) legal custody which is the decision making for the children, and (2) physical custody which is where the children live on a day to day basis.

While married, the spouses share joint legal and physical custody by default. However, upon divorce in New York, these obligations need to be discussed and apportioned in a way that makes sense for your family and, most importantly, your children.

In New York, all issues of custody, both legal and physical, are decided based upon “the best interest test.” This is not a one-size-fits all test. It is case-specific and what is relevant in your situation may not be relevant in your friend’s situation. Let’s look a little deeper at this concept.

The Governing Standard

When determining issues of custody, you (and if your matter is in court, the judge) will evaluate the facts of your case under the “Best Interest of the Child” standard. The typical factors that are considered in arriving at a custody agreement in New York are:

• stability of a parent;
• ability of the parent to care for the children;
• past history of drug or alcohol abuse;
• parent’s voluntary actions prior to involving the court or attorneys;
• home environment;
• child’s wishes or special needs

In New York, the presumption is that a child’s best interests are served by having a loving, healthy relationship with both parents whenever possible. So, unless there are extreme circumstances that might shift this interest a different direction, you and your spouse are likely to share the bulk of parenting responsibilities and parenting time.

Types of Custody

You’ve probably already heard the terms “legal” and “physical” custody thrown around at some point—either in a movie, or at your best friend’s backyard barbeque—but what do these terms mean, exactly?

In short, legal custody refers to a parent’s right to make important decisions on behalf of their child. Physical custody, on the other hand, describes where the child will actually live. Here’s a closer look…

Legal Custody

Parents have a right to decide how their child is raised. They have a right to decide what religion to expose them to, how to educate them, and what medical procedures to approve (or deny). Indeed, when it comes to parental powers, few rights are held in higher regard by courts at either the state or federal level.

There are three main types of legal custody:

• sole legal custody: this result is when one parent has sole decision-making power on all or select areas of legal custody.
• modified joint legal custody with final say: this may be a solution for situations where parents can discuss matters but, if they end up at an impasse, one parent has automatic final say and can made a decision without having to further involve a court
• joint legal custody: the parents must discuss and agree upon all legal custody matters.

Due to the gravity of this inherent authority, judges tend to lean to joint legal custody in almost every instance; with the other options for custody being reserved for truly contentious or difficult relationships.

Physical Custody

A physical custody arrangement, commonly known as a parenting time plan, is determined based upon what is best for your specific family. One of the best ways to determine a parenting time plan is to look at a calendar and consider your children’s already existing schedules. Is there a way to divide up time with them that will easily flow with the other obligations or transitions they already have in life? If so, you may want to spend some time crafting the schedule around those points.

A parenting time plan typically falls into the following three categories:

• Primary physical custody to one parent with parenting time to the other: this is where one parent has the children for more than 50% of the time.
• A “school year” and a “summer” schedule: often this type of schedule results in the parents agreeing to, perhaps, equally share physical custody during the summer months but have a “primary parent” during the school year with the primary parent’s home acting as a home base for the children for school purposes.
• Equal parenting time: this schedule is where the parents equally share time with the children based upon any number of schedules.

The type of custody schedule to be agreed upon, or imposed by a judge, is based upon the “best interest” test outlined above. In areas of physical custody, physical abuse or domestic violence is required to be considered by a judge though the statute does not state how a judge is to consider this factor…just that it “shall be considered.”

Another factor that is often discussed is the children’s wishes. In New York, the children’s wishes as to a custodial schedule are not determinative. The saying is that the children have “a voice but not a vote.” However, the children’s voice tends to have more weight as they reach the age 13 and older.

In New York, it is rare for a judge to revoke visitation rights, altogether. If you have a concern about the safety of your children during parenting time, that is something to speak with your attorney about so that you can create a way to ensure they are safe.

Work it Out Without a Judge

At the end of the day, no one knows your child better than you—not even a highly skilled judge. Unfortunately, when the court gets involved, an outside party is required to make these important decisions on behalf of your family.

Sometimes, court is an unavoidable situation, and we do the best we can to ensure the judge sees your family dynamics from your perspective. However, for most couples, a trial can easily be avoided.

Resolution methods such as mediation, or collaborative divorce, or simply agreeing to negotiate outside of court, offer parents the flexibility to meet their family’s individual needs on their own terms. They are also much less expensive and time consuming, meaning your child is less likely to be subjected to the toxicity of a long, drawn-out custody battle.

In general, judges are more than happy to approve parenting plans that couples reach, outside of court. So, if you and your spouse are able to negotiate and communicate respectfully, this could be a win for all parties involved.

Lauren L. Hunt: New York Divorce Attorney

It can be excruciating to watch your child suffer the ill-effects of divorce. As a parent, who is also a child of divorce, I not only empathize with this heartbreak but I know what your children are going through and worrying about. I want to do everything in my power to help you reach a custody agreement that fully meets the needs of your family.

If you have more questions about child custody in New York, and how these laws might affect your parenting arrangement, I want to hear from you. Schedule a consultation by calling the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together, we can ensure that your needs are met.

Frequently Asked Questions