Child custody is by far one of the most important – and possibly the most contentious – issues in a divorce. Under New York law, both parents have the right to decide how to raise their child after a divorce. They can work together to come up with a custody plan that is beneficial for all the parties involved. However, if they are unable to agree on an arrangement, the family court will step in and make a decision based on the child’s best interests.
Different Types of Child Custody in New York
#1. Legal Custody
Legal custody involves the right to make key decisions about how the child will be raised. These decisions might include:
- Deciding whether the child should go to private school, public school, or will be homeschooled.
- Relocating to a better school district if needed.
- Choosing electives that the child can take.
- Choosing extracurricular activities that the child can join.
- Choosing the primary care physician for the child.
- Deciding whether the child should take medication for non-emergency problems like attention deficit hyperactivity disorder (ADHD).
- Making dietary choices for the child in accordance with the primary care physician’s instructions.
- Making vaccination decisions for the child.
- Making emergency medical decisions for the child.
- Deciding whether the child should be enrolled in Sunday school.
- Deciding whether the child should be enrolled in a religious school.
- Deciding whether the child should participate in religious congregations, activities, events, and rituals.
- Deciding whether the child should dress and eat in accordance with religious customs and codes.
Depending on the circumstances, the court might grant sole legal custody to one parent or grant joint legal custody to both parents.
Sole Legal Custody
If the court grants sole legal custody to one parent (custodial parent), they can make all the aforementioned decisions for their child. While they can choose to consult with the other parent (non-custodial parent) while making these decisions, they are not legally obligated to do so.
It should be noted that the non-custodial parent has the right to make emergency medical decisions for the child – if and when necessary. For instance, if the child is injured in an accident and requires emergency surgery, but the custodial parent is not available, the non-custodial parent can make the decision by themselves and give permission for the surgery. They are, however, required to inform the other parent as soon as they possibly can.
Joint Legal Custody
If the court grants joint legal custody to both parents, they both have an equal right to make educational, medical, religious, and other decisions on behalf of their child. In a vast majority of cases, parents are granted joint legal custody, as it allows both parents to be equally involved in their child’s life.
#2. Physical Custody
Physical custody – also referred to as residential custody or primary placement – involves the physical care of the child. Depending on the circumstances, the court might grant sole physical custody to one parent or joint physical custody to both parents.
Sole Physical Custody
If one parent is granted the sole physical custody of the child, it means the child will live with them for the most part. As the primary custodian, the parent is required to take care of all the day-to-day needs of the child. However, they must consult with the other parent before making any major educational, healthcare, or religious decisions – if both parents have been granted joint legal custody.
The non-custodial parent will be granted visitation rights so that they can spend meaningful time with the child on a regular basis. The visitation schedule is usually decided based on where the non-custodial parent lives, whether the child can easily travel back and forth between the parent’s homes and a number of other factors.
The most common visitation arrangement is one where the non-custodial parent gets to have at least one dinner visit with the child every week and gets to have the child with them every other weekend.
Joint Physical Custody
If parents are granted joint physical custody of the child, it means they both get a substantial amount of parenting time. The child will live with each parent for a specific period of time – which might not be exactly equal, but substantial nonetheless. For instance, the child might live with one parent for four days a week and with the other parent for three days a week. Stemming from this, the child might live with one parent for one week and with the other parent the following week, and so on.
The custody arrangement largely depends on the parents’ work schedule in most cases. For example, if one parent works as a traveling salesperson and has to be on the road or go out of town frequently, they might not be able to spend as much time with their child as they want. In such a scenario, the traveling parent might have to compromise and agree to spend time with the child whenever they can.
#3. What Does “Best Interests of a Child” Mean in a New York Child Custody Case?
Under New York law, there is no standard definition for the term “best interests of the child”. It generally means that any decision the court makes regarding child custody and visitation will be based on the child’s health, safety, well-being, and emotional needs. When a divorce involves children, New York courts usually keep the child’s best interests (and not the co-parents’ individual preferences) at the center while determining the issue of child custody.
#4. What Are the Factors Taken into Account While Deciding on Child Custody in New York?
The most crucial factors that the family court might take into account while determining child custody include:
#I. Primary Caregiver or Nurturer of the Child
If one parent spent more time taking care of the child compared to the other parent during the course of the marriage, they are more likely to be awarded custody. This is because the child might have developed a strong bond with the primary caregiver and being forced to live with the other parent could affect the emotional well-being of the child.
#II. Parenting Ability
The court will take each parent’s parenting ability into account before determining custody – particularly if the child in question has special needs and requires a higher level of care compared to similar-aged children. If the court determines that one parent might be better suited to handle the emotional, psychological, and intellectual needs of the child, it might award custody to that parent.
#III. Childcare Arrangements
If both parties involved in the child custody case happen to be working parents, then the parent that can provide better childcare arrangements might be awarded custody.
#IV. Alcohol and Drug Use
If one parent has a serious drinking problem or substance abuse problem, they are less likely to be awarded custody as it might pose a risk to the child’s safety and well-being. However, if the parent had a substance abuse problem in the past, but underwent treatment and/or therapy, and has since been clean, the court is unlikely to hold it against them while determining custody.
#V. Mental Health of the Parents
If one parent has a mental health problem and is emotionally unstable, and if the court believes that their condition could affect their ability to care for the child or might pose a risk to the child’s safety, they are unlikely to be awarded custody.
At the same time, the mere fact that a parent has a mental health issue does not preclude them from getting custody. For instance, if a parent is suffering from an anxiety disorder and is taking medications for it, their parental skills might not be affected in any way. On the other hand, if they are suffering from bipolar disorder or schizophrenia and not taking medication, their ability to care for the child might be affected adversely, in which case they are unlikely to be granted custody.
#VI. Physical Health of the Parents
If one parent is physically disabled or has a health problem that severely restricts their ability to care for the child, they are less likely to be awarded custody.
#VII. Educational Opportunities for the Child
If one parent is able to provide better educational opportunities for the child – like being able to send the child to a prep school or a special education school – the court might take it into account while determining custody.
#VIII. Abuse, Neglect, or Abandonment
If one parent is known to have abused, neglected, or abandoned the child in the past, they are less likely to be given custody.
#IX. Domestic Violence
If one parent committed an act of domestic violence against the other parent or against any member of the household in the past, the court might doubt their ability to provide a stable and nurturing environment for the child. They might decide to grant custody to the other parent.
It should be noted that under New York law, domestic violence need not necessarily be sexual or physical in nature. Emotional, psychological, and economic abuse can also be considered domestic violence. Common examples include:
- Threats and intimidation
- Controlling the finances of the other parent against their wish
- Preventing the other parent from seeing their family members, friends, or acquaintances
#X. Home Environment
If one parent is in a relationship with an individual who has a history of committing violent or sexual offenses or has a serious substance abuse problem, they might not be able to provide a safe environment for the child. In such a scenario, the court might be inclined to grant custody to the other parent.
#XI. Parental Alienation
If one parent is accused of parental alienation – turning the child against the other parent through emotional manipulation – the court might not be inclined to award them custody.
#XII. Finances of the Parents
If a parent does not have sufficient disposable income to provide for the needs of the child, it can impact their chances of getting custody. It is, however, not a disqualifying factor as the parent still might be able to provide for the child using the child support payments from the other parent.
#XIII. Child’s Wishes
The family court might also take into account the child’s preferences while deciding custody – depending on the child’s age. If the child has a very strong bond with one parent and wishes to reside with them, the court might decide to award custody to that parent – as long as doing so would be in the best interest of the child.
In some cases, the child might want to reside with one parent for the wrong reasons. For instance, if the parent does not discipline the child, does not set appropriate boundaries, or fails to instill a sense of morality in the child, it might not be in the child’s best interests to grow up with that parent. As a result, the court might decide to grant custody to the other parent.
#5. Why You Need an Experienced New York Child Custody Attorney on Your Side
Child custody is an issue that can trigger strong emotions from the child’s parents – even under the best of circumstances. It’s fundamental for you to have the guidance and support of a child custody attorney. There are many reasons why having a skilled attorney by your side can greatly help your case.
#I. They Can Protect Your Rights
A seasoned child custody attorney can safeguard your rights as a parent and make sure your interests are not compromised at any point during the divorce proceedings. It’s particularly crucial if you are going through a contentious divorce and your ex is not willing to cooperate or work with you at all.
#II. They Can Tell You What to Expect
In many divorce cases, the parties involved tend to have unrealistic expectations regarding alimony, child support, and child custody. A knowledgeable attorney can tell you what your rights are, what the other parent’s rights are, and what kind of outcome can be achieved so that you can keep your expectations realistic.
#III. They Can Negotiate on Your Behalf
A vast majority of child custody disputes in New York are resolved through negotiation. If your ex has hired an attorney, it means they are willing to fight it out in court if needed to get custody of the child. It’s critical for you to respond in kind and hire an attorney to represent you in child custody negotiations.
Remember – you cannot negotiate as well as a trained attorney – no matter how good your legal knowledge might be. With that said, you need to make sure you are represented by an attorney who can negotiate tactfully with your ex’s attorney and protect your rights as a spouse and as a parent.
#IV. They Can Represent You in Court
While there is no doubt that child custody issues are best resolved through negotiation or mediation, if your ex is being completely unreasonable, you might have no other option but to take your case to court. If and when it happens, you need a confident and competent lawyer to represent you and fight for your rights and interests.
#V. They Can Make a Strong Case for You to Be Granted Custody
In a child custody case, you not only have to make the case that you are a good parent but also need to make the case that living with you would be in the best interests of your child. It is – needless to say – not something you can do on your own. An accomplished child custody attorney can develop the right legal strategy, gather the evidence needed to strengthen your case, and make persuasive arguments to achieve the best possible outcome.
#VI. They Can Assist You with Other Aspects of Divorce
A child custody attorney does not focus on custody issues alone. They can help you with spousal support, child support, supervised visitation, and a number of other issues related to your divorce. They can also help you with post-divorce issues like modifying the spousal support, child support, or child custody order.
Get the Highest Level of Representation from Our New York Child Custody and Visitation Attorneys
If you are planning to file for divorce or have already filed for divorce and you and your spouse are unable to come to an agreement on child custody, the New York family law attorneys at Brian D. Perskin & Associates can help you.
A trusted name in the domain of family law, our law firm has represented thousands of clients over the years in a wide range of family law-related cases and has gotten results that most other firms cannot. Our founding partner – Brian D. Perskin – is a highly accomplished, highly rated family law attorney with nearly three decades of experience. Attorney Brian D. Perskin and his legal team can provide you with personalized, compassionate, and aggressive legal representation and will fight tirelessly to achieve a favorable outcome.
To schedule a free and confidential consultation with one of our experienced New York child custody lawyers, call us today at 877-826-7257 or get in touch with us online by filling out this contact form.