Child Custody FAQs

1. What are the different types of child custody in NY?
2. What is the difference between a custodial and non-custodial parent?
3. How are child custody cases determined?
4. What are visitation rights?
5. Can a custodial parent relocate with their child?
6. Can I modify my child custody agreement?

1. WHAT ARE THE DIFFERENT TYPES OF CHILD CUSTODY IN NY?

There are two broad types of child custody: physical and legal. Physical, or residential custody, refers to which parent the child lives with. Legal, or decision-making custody, refers to the parental authority to make decisions regarding the child, such as decisions involving the child’s health and education.

Within physical and legal custody, there are two types: sole or joint custody. If a parent has sole custody, the child will reside with him or her and they will have the primary ability to make decisions for the child. In a joint custody arrangement, the child will split their time between residing in each parent’s home. The parents would both have the authority to make major choices on behalf of their child, and can either have “equal decision-making” power or the primary custodial parent would get to make final decisions after consulting with the non-custodial parent. In New York, joint custody arrangements are often established through an agreement between the parents depending on their specific situation. Other types of custody include shared and split. Shared custody refers to when parents share their access to their child 50/50, and split custody refers to cases in which at least one child lives with one parent and at least one child lives with the other.

2. WHAT IS THE DIFFERENCE BETWEEN A CUSTODIAL AND NON-CUSTODIAL PARENT?

The term custodial parent refers to the parent who has primary physical custody of his or her child. The custodial parent resides with the child for the majority of the time and has the most responsibility for the child even if there is a joint custody arrangement and the other parent plays a very active role in the child’s life. The non-custodial parent is the parent who does not have physical custody of his or her child. It is possible, however, for a non-custodial parent to have legal custody, or the authority to make decisions about the child. They also may have visitation rights and be highly involved in their child’s life.

3. HOW ARE CHILD CUSTODY CASES DETERMINED?

The court makes decisions regarding child custody based on what they deem is in the “best interests of the child.” In order to decide what is in the best interest of the child, the court examines factors including: who the primary caretaker of the child is, the child’s wishes, the physical and mental health of each parent and the child, the parenting abilities of each parent, each party’s work schedule and child care plan, the child’s relationship with each parent, any incidences of domestic violence or child abuse, where the child resides when the custody application is being reviewed, the parents’ willingness to communicate with each other, etc.

4. WHAT ARE VISITATION RIGHTS?

When one parent is granted sole custody of a child, the other parent is generally entitled to visitation rights, or the right to visit with their child. The terms and schedule of visitation can be decided by the parents, or if they can’t agree, then by the courts. Visitation is generally granted to non-custodial parents unless it is not in the child’s best interest, such as if the non-custodial parent is abusive, a drug addict, or alcoholic. In joint-custody arrangements, visitation is not an issue because the child lives with both parents.

5. CAN A CUSTODIAL PARENT RELOCATE WITH THEIR CHILD?

If a custodial parent moving with their child would infringe upon the non-custodial parent’s visitation rights, the non-custodial parent can take legal action to prevent the custodial parent from relocating. This may include petitioning for custody or for a modification of a custody agreement to keep the other parent from moving. If this occurs, the custodial parent would have to prove to the court that relocating is necessary for economic or familial reasons and that it would not inhibit the other parent’s visitation rights.

A judge may prevent the custodial parent from relocating or order him or her to pay for the non-custodial parent’s travel expenses to visit with the child, for instance. Ultimately, the court determines whether or not a custodial parent can relocate with their child based on whether moving is in the child’s best interest, whether access to the child will be maintained for the non-custodial parent, and on exceptional circumstances or reasons that the custodial parent must move, such as for financial reasons or a health situation.

6. CAN I MODIFY MY CHILD CUSTODY AGREEMENT?

In New York State, you can modify a child custody order if there has been a significant change in circumstances since the last custody order was determined in the case. If there has been a substantial change in circumstances, you can file a modification petition with the help of an experienced family lawyer. The court will apply the same principles as before in determining the custody arrangement, basing the order on what they deem is in the best interests of the child.