New York Child Custody

The Components of New York Child Custody

By Staff Writer

When most people hear the term Custody, they assume that it means where a child will live after a Divorce or Separation. In New York, Custody means much more. The best way to understand the legal concept of Custody is to think about all of the complexities of raising your own children with your partner. Where the children sleep at night is far from the only issue you encounter on a daily basis. True parenting involves much more. So too does Custody. Just because you and your partner will no longer be living in the same household, does not mean that the child-related issues will change. All of the issues that existed before the Separation or Divorce will continue after. The challenge is in determining how you and the other parent will arrange daily parenting responsibilities as well as time with the children.

Custody is comprised of two separate and distinct components. Separating or divorcing parents must determine how important decisions will be made for their children when the parents live in two different households. In intact families, issues such as what school the children will go to or what doctor will treat the children are either made by one parent or by both parents together. During or after a Separation or Divorce, one or both parents will make those decisions. How that happens depends on who has Legal Custody. Legal Custody is the right to make important, legal decisions for your children. It can be granted to just one parent (Sole Legal Custody) or both (Joint Legal Custody).

Joint Legal Custody does not work for all families, even those where the parents previously shared decision making for their children. To determine if joint legal Custody can work for you, you must decide whether you and your spouse will be able to agree on the major decisions pertaining to your children. If you and your spouse are so estranged that you are unable to rationally and calmly communicate, joint legal Custody will not work. Courts in New York operate on that principal. If you and your spouse have not entered into an agreement regarding Custody, a New York Court will rarely Order joint legal Custody if the parties are at war.

There are a number of practical issues to be considered when addressing the issue of joint legal Custody. The term joint legal Custody is very important to many parents. Even when the parties are not able to get along, parents will often insist upon a joint legal Custody arrangement. The majority of Custody cases are negotiated in an agreement. The current trend in negotiated agreements is to accommodate the parents and state that the parties will have joint legal Custody.

The practical effect of negotiating a Joint Custody arrangement does not ensure that the parties will actually ever make decisions jointly. If the parties cannot agree, the party who has primary control, or Primary Physical Custody of the children, will often make those decisions. The Court system rarely has a remedy to offer the parent who is left out of the decision making process. Judges do not want to micro-manage the families appearing before them. Litigation that is commenced after a parent refuses to engage in joint decision making rarely results in a workable or acceptable resolution. At times, it seems that the only rational response that the Court system can make is to direct that the parties engage in some sort of shared parenting or custodial counseling. There is, however, no guarantee that that process will work either. The bottom line is that it takes two concerned and committed parents to make a Joint Custody arrangement work. When that happens, if you can make it work the children will benefit. When it does not, If you cannot make it work the attorneys make a lot of money, and you and your children will suffer. The most significant result of parents engaging in warfare over the children is the effect upon the children. When parents can focus on their children’s well being and emotional health, they may be able to put aside their own emotional issues and work with the other parent. Many people simply cannot or will not do so. While focusing on their own emotional needs, they will negatively impact their children in ways they never intended. The effect of the parent's conflict can have a life long effect on the children.

If it is agreed or Ordered that only one parent will have legal or sole Custody, that parent will be responsible for the majority of the decisions pertaining to the children. The other parent can still be updated on and informed of educational and medical issues. Negotiated agreements often contain a provision that school and medical records will be sent to both parents, even if only one has legal Custody. Some institutions will do so immediately upon request, and some will require the written consent of the parent with legal Custody. It has also become very common in litigated cases for Courts to direct that such information be shared with a non-custodial parent. It is also common for agreements and Orders to include a provision that the parent without legal Custody has a right to receive this information and that the other parent will sign an authorization or take any other steps necessary to ensure that this information is provided.

The second form of Custody, Physical Custody, addresses where the children will live. Physical Custody is only an issue if the parents have Joint Legal Custody. If one parent has legal or sole Custody, the children will live with that parent. The majority of cases result in an agreement that the parties will have Joint Custody. When that occurs, they must also agree upon the issue of Physical Custody.

Your children’s living arrangements, or Physical Custody, can be structured based upon the unique circumstances of your family. You can share physical Custody equally, with each parent having the children 50% of the time, which is also called Joint Shared Legal and Physical Custody, or the children can live mostly in one parent’s home. That parent would be the primary physical custodian”. The more common arrangement is to have one primary physical custodian.

If one parent will have Primary Physical Custody, you must agree upon a schedule of time when the children will see their other parent. The time they will spend with that parent is commonly called “visitation” or “parenting time”. Other terms that are used include access time and custodial access. Many parents object to the term visitation”. They are divorcing their spouse, not their children, and they do not want to be relegated to the role of a mere visitor. It is very rare for an attorney or Judge to refuse to accommodate a request for the use of language other than the word “visitation” in an agreement or Order.