NY Divorce at a Glance. Part 2 of 8: Custody
A short summary on how child custody is decided in New York
What is Custody?Courts generally break custody down into two components, legal custody and residential custody. Many courts will not use the term legal custody but it is useful in understanding the concept. A more modern terminology is decision making custody.
Residential Custody, or physical custody is where the child lives. It is the child's legal residence. Even when there is true shared custody, very often a child may need a residential address to enroll in school.
Decision Making or Legal Custody defines which parent has the authority to make decisions. For sole custody, that parent has sole decision making power. For joint custody, both parents can make decisions independent of each other. Spheres of custody is another approach which gives each parent sole decision making authority within certain spheres. For example, one parent may make all educational decisions while the other parent will make all medical decisions.
What is Parenting Time?Parenting time is the schedule that each parent has with the child. There is no standard schedule, as each parental access schedule can be as unique as the parents and children, but there are some common elements. Once residential custody is decided, the other parent must be given meaningful access time. This time will take into account the distance between the parents, whether the children are pre school or attending school, and the work schedules of both parents. Mid week times are common, and holidays are usually split into alternating years with the schedules swapping each year.
Limits on parenting time must be in the child's interest and it is up to the parent seeking to limit parental time to establish why.
How is Custody and Parenting Time Determined?Custody is extremely fact specific and each case will be determined on the particular facts unique to that family. A framework for applying those facts is as follows.
Custody will be determined by a "best interests" standard. That means the court will focus on what benefits the child ahead of what benefits the parent.
Best Interests cannot focus on one single factor, and it is improper for a court to decide custody based on one factor at the expense of the others. This concept is known as "the totality of the circumstances."
Not every factor must be used, and not every factor will apply to every case. The Court must consider what factors are relevant, discuss each one, and apply the totality of the factors to determine custody.
A comprehensive list of the most common factors is as follows:
Absence of Parent
Age of Parents
Alcohol & Drug Use
Availability of Parents
Disability & Physical Health
Disregard for Court Orders
Existing Informal Custodial Agreements
Existing Written Custody Agreements
Finances of Parents
Findings of Child Neglect/Abuse
Mental & Emotional Stability
Parent's Observable Behavior in Court
Preferences of the Child
Tardiness of Parent
Willingness to Foster the Child's Relationship with the Other Parent
Additional resources provided by the author
- New York State Unified Court System Custody Resource Page
- Findlaw Summary on Custody
- Our Family Wizard
- Full Article: How Custody is Determined in New York
- Part 1 of 8: Procedure of a Divorce at a Glance
- Part 3 of 8: Spousal Maintenance at a Glance
- Part 4 of 8: Child Support at a Glance
- Part 5 - Equitable Distribution
- Part 6 - Exclusive Occupancy of the Marital Home
- Part 7 - Counsel Fee Awards
- Part 8 - Grounds for Divorce