Child Custody

New York Child Custody Attorneys

In New York, child custody is often the most challenging issue presented in a family law situation. Parents need not be married in order for child custody to arise, but only have a common child or children together. Upon dissolution of the marriage and/or the termination of cohabitation, the need to address a number of issues becomes paramount:

1. With whom shall the child(ren) primary reside?

2. What constitutes an appropriate parenting/visitation schedule?

3. How are major decisions affecting the children's welfare to be made by the parents on a going forward basis?

"Child custody" in New York generally denotes a parent's degree of control, guardianship and responsibility for a child under the age of 18 years. A child who has attained the age of 18 years is no longer subject to a judicial determination of child custody but is still entitled to support until the age of 21, unless earlier emancipated.

New York State recognizes two distinct types of child custody: Residential/Physical Custody and Legal Custody.

1. Residential/Physical Custody denotes with whom does the child or children primarily reside the majority of time. Issues impacted by this designation, among others, include where the child will attend school (presuming public school attendance) and which parent shall receive child support.

2. Legal Custody denotes a parent's right to make major decisions regarding a child(ren)'s welfare, such as medical, educational and religious decision-making.

Derived from the aforesaid concepts is an array of custodial possibilities. The most common of these options are as follows:

1. Sole legal and physical/residential custody entails one (1) parent retaining exclusive decision-making authority on behalf of the child(ren), together with a designation that the parties' children primary reside with him or her.  Although representing the most "one-sided" of custodial determinations, it nonetheless most frequently remains subject to the non-custodial parent's visitation/parenting time, as well as the non-custodial parent's rights to have access to all important information regarding the child(ren), such as medical and educational.

2. Joint legal custody with primary physical/residential custody entails both parents sharing decision-making authority and responsibility on behalf of the child(ren), while said child(ren) primarily reside with one (1) party and the other party enjoying parenting time.

3. Joint legal and physical/residential custody entails both parents sharing decision-making authority and responsibility on behalf of the children, together with an equal shared parenting schedule or, in other words, equal time with their child(ren). This represents the purest sharing of custody between two (2) separated parents. It is rare for a Court to grant such an arrangement absent both parties consent, due to the limited circumstances under which such an arrangement is practical (i.e. both parents residing in close proximity, both parents maintaining sufficiently amicable relations, etc).

As a general rule, the separation of siblings is frowned upon. However, where circumstances warrant, and if it is in the best interest of the children, separation of the siblings can be negotiated between the parties, and/or be ordered by a court.

Almost every time a divorce takes place it results in some diminution of contact between parent and child. Whatever time is spent with one parent leaves the other somewhat in the dark as to what has gone on with the children. For this reason it is important to agree to share certain kinds of information. It is fairly obvious that information about medical matters, educational matters, and special events should be shared. What might not be so obvious is that information about disciplinary situations and emotional health should also be shared. It is important that parents confer not only to have the opportunity to participate in special situations and know about their children, but also so children know that both parents are informed and united on important issues.

Legal Custody

As discussed above, custody is separated into two different concepts, physical custody, and legal custody. Legal custody is a distinct concept from physical or residental custody of the children, and is related to the making of important decisions. Thus legal custody involves decisions regarding health, education and welfare. Sole legal custody refers to a situation in which the sole responsibility and right to make decisions belongs to one parent or the other. When we discuss joint legal custody, this means that both parents retain the right to make the previously mentioned major decisions.

Major decisions do not refer to normal, day to day decisions or emergency medical decisions which must be made by whichever parent has physical custody of the children at a particular time.

In our experience the most important consideration regarding joint legal custody is whether or not the two parties can communicates well enough to discuss matters. It is important that both parents and children have a sense that there is a continued cooperation between parents and a continued involvement with children. This certainly enhances the feeling for children that they have not been “abandoned” or “left: by either parent. On the other hand, if every time a major decision has to be made the result is fighting and bickering, then joint legal custody would not be an enhancement for either parents or children.

Shared Physical Custody

Following are some examples of how shared parenting can be structured.

A number of different solutions can be found to deal with the sharing of physical custody. Sharing the children does not necessarily mean that the children will be shifted back and forth irrationally. Nor does it mean that they lose a sense of having a home base. When the needs of the children as well as the availability and needs of the parents are taken into consideration, there are many unique and workable solutions that can be created to enable parents to share the physical custody of their children.

When Custody is in Dispute

When the issue of custody cannot be agreed upon, it becomes the most difficult issue in the divorce. Where there is animosity between the parents and an inability to agree, the courts will rarely award joint custody. In those instances, the court will decide the issue of custody in favor of one parent or the other.

When the issue of custody must be decided by the court, there are various procedures that are usually followed prior to the time that the court will hear the issue of custody and make a determination. Perhaps the most common procedure is the appointment of a law guardian (a lawyer for the children) and that of forensics: the psychological evaluation of the children and the parents, and the preparation of a report which is submitted to the court.

In a custody dispute, children will be interviewed by either a psychiatrist, psychologist or social worker as part of the evaluation. The children cannot be shielded from this aspect of the dispute between the parents.

If the report submitted to the court is noncommittal, or, notwithstanding the recommendation in favor of one parent, if the other parent does not want to settle the matter, the court must then conduct a trial at which time the children will most probably be interviewed in chambers. During this interview parents are not present, and sometimes attorneys are excluded as well.

The courts may appoint a special lawyer to represent the children’s interest, called a law guardian, who may also make a recommendation to the court with reference to the issue of custody. A home study may also be ordered by the court. Where there is a contested custody case, legal fees as well as psychological and law guardian fees can run into thousands of dollars.

Where children are older, usually thirteen, fourteen, or above, the expressed preference of children usually carries great weight, and in some cases, depending upon the maturity of the child, the court is almost bound to honor the wishes of the older child.

If a mature young teenager of thirteen, fourteen, or fifteen expresses an unequivocal preference to be with one parent rather than the other, it is difficult for a court to direct a child to live with the other parent, overriding the child’s expressed preference.

Older children can usually help resolve the custody issue if they are able and willing to express a preference. An unequivocal preference by such a child would usually result in the attorney for the other parent advising the client that the chance of a judge overruling the wishes of a child of that age would be minimal, and that continued litigation would not be in the best interests of the child or of the parties.

The law is gender neutral, and there is no preference that custody should be awarded to one parent or the other.

Change of Custody

As with the issue of support, the issue of the change in custody status is one that may be entertained by the court as it is in the best interest of children that their needs be addressed.
Change of custody is not granted merely because one parent requests change, but it must be predicted on a meaningful and substantial change of circumstances from the time of the agreement regarding custody or the court order determining custody.

For example if one parent who receives custody at the time of the divorce, subsequently becomes a drug addict or an alcoholic or engages in other antisocial behavior which has or will have a negative impact upon the children, a change in custody may be warranted.

The important criterion with regard to this issue is that the behavior which is being attacked by the noncustodial parent must impact on the children negatively. If the custodial parent engages in behavior which the noncustodial parent disagrees with, but there is no detrimental impact on the children, then such an application will probably not be successful.

As with the determination of custody in the first instance, change of custody applications can also involve psychological and home study evaluations.