Basic Child Custody Rules in New York

A overview of the main legal issues regarding child custody in a New York divorce case.

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The most poignant and sometimes misunderstood issue in a divorce is the issue of the custody of the children of the couple. The divorce laws vary in many aspects from state to state and it is important to understand the law of the state in which the divorce is taking place. Courts in every state attempt to resolve the issue of custody “in the best interest of the child” and each state defines this in a slightly different manner.

Of course, both parties of the divorce want what is best for their child, but they can be caught up in the emotions of the situation and the court therefore must become an impartial third party.

What Are the Best Interests of the Child?

New York’s courts consider many of the following as being in the Best Interest of the Child:

  • Which parent has been the main care giver/nurturer of the child
  • The parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child's special needs, if any
  • The mental and physical health of the parents
  • Whether there has been domestic violence in the family
  • Work schedules and child care plans of each parent
  • The child's relationships with brothers, sisters, and members of the rest of the family
  • What the child wants, depending on the age of the child
  • Each parent's ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so

Types of Custody

Legal Custody

This is defined in New York as the decision making aspect of parenting. There are many things that parents need to be concerned about in the course of raising a child. The parent with legal custody will make such decisions as the religion of the child, who will give them their routine medical and dental care, where they will be educated, and other pertinent parts of the child’s life. The courts much prefer to give the parents Joint Legal Custody which would mean that they must discuss these issues before a decision is made and one parent cannot make the choice without the agreement of the other parent. However, in the case that one parent is deemed unfit for any reason, the court will grant Sole Legal Custody to one parent alone and the other will not have any input into these major decisions.

Physical Custody

New York often terms this as a residential placement of the child. A child needs to have a place of domicile or in essence, an address. They need this for school purposes, other documentary purposes, and basically a place to call home. Most courts prefer to have this be with one parent with reasonable visitation rights granted to the other parent. One parent being granted physical custody is considered more stable for the child and certainly for issues with schooling and medical care. When a custody order is granted by the court, a visitation schedule is almost always part of that order.

Once again the court will try very hard to determine what is in the best interest of the child. This sometimes means that a disinterested third party, usually an attorney, will be appointed to be and advocate for the child and report on what action they recommend that the judge make in the case. This third party will also rely on the what placement would benefit the child or children the most.

Conclusion

A divorce is a very emotional time for a family even if the parties appear to be in agreement on most issues. It is very hard on children and the parents need to take pause and try to understand what is best for their child and not just what their own personal desires in the case are.

It is usually recommended that each party to a divorce be represented by their own attorney to avoid conflicts of interest and to have their own advocate. Attorneys that deal in Family Law matters regularly understand that this is a difficult time for children and are usually able to reasonable discuss these emotional issues with their clients.

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