Divorcing couples might not see eye to eye on much, however, those with children can usually agree that no one is more important the littlest of their brood. In fact, minor children are often the main reason people put off divorce, as many parents worry about how a divorce may impact their child.

Luckily for parents, these concerns are shared by the state of New York. The court understands that, during divorce, each decision will have long-lasting, and far-reaching effects on a child’s emotional and physical well-being. As such, the goal in any custody matter is to make sure that the children’s issues are resolved in a way that makes sense for that particular family.

Best Interest of the Child

When making decisions involving children, the court evaluates all facts through the scrutinizing lens of the “Best Interest of the Child” standard (also known as the “Best Interests” test).

Under this principal, every decision that impacts a minor is made with the child’s overall well-being at the forefront—not just as it applies to their short-term happiness, but in regards to their long-term growth and emotional welfare, too.

As a parent, your perspective on this front is a valuable resource to the court. However, it isn’t infallible, and occasionally, your wishes might get overruled in favor of what the judge believes is in your child’s best interest. A judge-decided custody resolution is, often, not the best option for families as a judge can never understand your children and family dynamics as well as you and your spouse. Stated a different way – if you want a result that is actually tailored to your family’s needs – the best way to do that is through an out of court settlement. Couples who are able to settle out of court are usually much happier with their final outcome, since it offers them much more control over the terms – and, in effect, their children’s lives. However, sometimes you cannot find a way to reach a resolution out of court. In those instances, understanding the custody laws can be vitally important.

Custody and Visitation

In layman’s terms, “custody” is essentially the delegation of parental power, and can be broken down into two main categories: legal and physical. Each category has to be addressed in any custody settlement or custody order, therefore, it is essential to understand both and how they apply to your family.

Legal Custody

Legal custody is decision-making for a child; specifically, decisions in the following areas: education, medical needs, religious upbringing, general health, welfare and morals. Legal custody can be resolved in the following ways:

  • Joint legal custody: where the parents have to jointly discuss and agree upon all matters,
  • Sole legal custody: where one parent has total control over all matters; and
  • Modified joint legal custody with final say: Where the parents have to discuss all matters but if they cannot agree, one parent has final decision-making power.

Of the above resolution types, Joint Legal Custody is the most frequent resolution. This is because the inherently imbedded right of a parent to choose how their child is raised is highly regarded by both state and federal courts. As a result, judges are loath to take it away from either parent. The only times the court might limit these rights, is if doing so is absolutely necessary to avoid future harm to a child.

Physical Custody

Physical custody refers to where the child will live on a day-to-day basis.

In New York, the court maintains that a child’s best interests are served by having a loving, healthy relationship with both parents. Judges like to find resolutions for physical custody that ensure the children will see each parent on a frequent basis. There is a trend in New York to arrangements where the parents equally share physical custody. This is called “equal parenting time.” However, in some situations, the family needs a situation where the children live primarily with one parent (the “primary custodial parent”) and visit the other parent (for, “parenting time.”)

A number of factors contribute to a physical custody schedule, including children’s needs, the availability of both spouses, overall home environment, educational opportunities and the children’s wishes (to varying degrees). The court is will also consider whether the parents can help their child foster a relationship with the other parent.

Parenting Time

When a child’s time is split unequally between partners, leaving one parent as the “primary custodial parent” and, then the other parent will have “parenting time.”

In situations where substance abuse or violence is a concern, a judge may order supervised visitation. Supervised visitation is exactly that – it is when a parent’s parenting time is supervised by a third party to make sure that the children are safe. The supervisor may be a friend, family member, mutually agreed upon third party, or a person from a supervised visitation agency.

Does My Child Have a Say?

Children are young and impressionable, and—as anyone who has battled vegetable-eating and teeth-brushing tantrums can attest—they aren’t always capable of knowing what’s actually best for them.

Because of this, the children’s wishes may come into play in a custody case to varying degrees. The saying in this respect is that “children have a voice, but not a vote.” Though, as a general rule, the closer the child is to eighteen, the greater weight these wishes are given.

Adultery and Divorce

Being a crummy spouse doesn’t mean you’re a bad parent. Therefore, an affair is often irrelevant in a custody matter; and does not affect custody and visitation.

While an affair may be irrelevant, a new relationship may be important – only to the extent that many judges want to see parents waiting until the relationship is at least several months old before the children meet the new boyfriend / girlfriend. This is to enhance the child’s stability by not having new people brought in and out of their life.

Child Support

Another important issue that divorcing partners face, is the question of child support. After all, your children may be your life…but they are also expensive!

The law in New York State requires that both parents financially support their children. Child support is composed of 2 items: basic child support and “add on” costs.

Basic child support is a set payment (biweekly / weekly) from parent who has parenting time to the parent who has primary physical custody. This payment is most often a percentage of the paying parent’s income. In cases of equal parenting time, the parent with the greater income is the parent who would pay support to the other parent.

The “add on” costs are specified expenses that are split between the two parents – either in proportion to their income (“pro rata”) or in another agreed upon manner. The child support statute requires that the following expenses are shared: the children’s portion of any health insurance premium, the children’s uncovered medical costs, child care expenses incurred to enable a parent to work. Parents can also agree to split any other cost or expense they may agree upon.

These funds are not optional—and neither is visitation time. Late or missed payments do not give a custodial parent the right to withhold visitation, and doing so can have severe consequences. If your spouse isn’t paying child support, your attorney can help you address these issues through legitimate channels.

Lauren L. Hunt: New York Divorce Attorney

Divorce is a confusing and difficult time for children. Many feel lost and abandoned, and are unable to grasp the changing dynamics of their new reality. For parents, watching this struggle is, perhaps, the most excruciating aspect of divorce.

As a mother and a child of divorce parents, I understand your concerns and your child’s fears. I<spanconverted-space”>  empathize with parents trying to cope under the burned of shifting responsibilities and an unknown future. I bring this parental perspective to my practice, and am particularly sensitive to these needs as an attorney.

If you have more questions about divorce in New York, and how it might affect your children, call the offices of Lauren L. Hunt at (518) 282-7300, or, make an appointment online, and together, we can ensure a bright new future for the ones you both love the most.