Written by attorney Kenneth M Keith

Child Custody in New York

"Legal custody" is the right of a parent to make decisions regarding the child’s health, education, religion, and discipline, while "physical custody" defines the parent which whom the child or children will reside. Custody is determined by the court; when there is a separation agreement or Stipulation of Settlement (the agreement negotiated between the parties to a divorce) the private arrangements are generally approved.

Courts decide custody by determining the "best interests" of the child and considering (1) a parent’s fitness; (2) the relationship between parent and child; and (3) influences on the child’s growth and development. A judge may weigh the preference of a child based on age and maturity; prior to twelve a child’s preferences have limited influence. Courts are very reluctant to separate siblings in the absence of an overwhelming need. New York prohibits determinations based on gender and men are increasingly being granted custody. There are, basically, three types of custody, but within each title there is little limit to how the custodial arrangement will be structured:

Sole Custody

  • An arrangement whereby only one parent has physical and legal custody of a child and the other parent (generally) has rights to visit with the child.

Joint Custody- With Joint Custody, while one parent will still be the physical custodian of the child, both parents will enjoy a shared role in the making of decisions on substantial questions relating to educational issues, religious matters, medical options and other significant issues which may present themselves in a child's life. Merely titling a custodial arrangement as 'joint custody' will do little to foster the spirit of true joint custody, which benefits both parent and child alike, if both parents fail to exert their best efforts to work cooperatively.

Shared Custody- Defined in Section 9 of the Federal Child Support Guidelines as a situation where each spouse “exercises a right of access to, or has physical custody of, a child [of the marriage] for not less than 40 per cent of the time over the course of a year" shared custody is actually a variant of joint custody in which each parent has periods of physical custody of the child generally intended to divide the time as close to equally as is practical. To give this relationship its best chance of success (and to be fair to the child) the parties generally need to live in close proximity to each other so the child is always close to school and friends

Although sole custody is favored in New York, joint custody is appropriate when the parties state they can cooperate on issues relating to the children. Unfortunately, in order to reduce legal costs and speed the process, couples often agree to joint custody while truly being unable to parent together, thus making for future problems

Visitation- Visitation, now referred to as parenting time, is viewed as part of the joint right of the child and non-custodial parent to an ongoing relationship. The love and guidance of the non-custodial parent is highly valued and promoted by the court in the absence of any factors which would be harmful to the child. As a rule the basic form of parenting time for the non-custodial parent is alternating weekends & holidays, shared time on the child's birthday, time on the parent's birthday & Father's or Mother's Day as may be applicable, alternate school vacation weeks (where the parent's schedule allows) and two weeks or so in the summer. This is a basic schedule and additional time or a modified schedule is not at all unusual

Relocation (with the children)- The Courts use a "best interests of the child" standard to decide whether a parent will be able to re-locate away from the geographic area where the non-custodial parent resides. To determine the "best interests of the child," the courts utilize the approach adopted by the New York Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). The court will consider:

Each parent's reasons for seeking or opposing the move.

The quality of the relationships between the child and the custodial and non-custodial parents.

The impact of the move on the quantity and quality of the child's future contact with the non-custodial parent.

The degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move.

The feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements, and

The negative impact, if any, from continued or exacerbated hostility between the custodial and non-custodial parents, and the effect that the move may have on any extended family relationships.

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