In New York, child custody is often the most challenging issue presented in a family law situation. Parents do not have to be married for child custody issues to arise. Upon dissolution of the marriage and/or the termination of co-habitation, the need to address a number of issues becomes paramount, such as:
- With whom shall the child(ren) primarily reside?
- What constitutes an appropriate parenting/visitation schedule?
- How are major decisions affecting the child(ren)’s welfare going 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. However, New York law requires parents to support their children until the age of 21, unless earlier emancipated.
New York State recognizes two distinct types of child custody:
- Residential/Physical Custody denotes with whom the child(ren) primarily reside(s) the majority of time. Issues impacted by this designation, among others, include where the child(ren) will attend school (presuming public school attendance) and which parent shall receive child support.
- Legal Custody denotes a parent’s right to make major decisions regarding the child(ren)’s welfare, such as medical, educational and religious decisions.
Derived from the aforesaid concepts is an array of custodial possibilities. The most common of these options are as follows:
- Sole legal and physical/residential custody entails one parent retaining exclusive decision making authority on behalf of the child(ren), together with a designation that the parties’ child(ren) primarily 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.
- Joint legal custody with primary physical/residential custody to one parent entails both parents sharing decision making authority and responsibility on behalf of the child(ren), while said child(ren) primarily reside with one party and the other party enjoying visitation/parenting time.
- Joint legal and physical/residential custody entails both parents sharing decision making authority and responsibility on behalf of the child(ren), 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 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(s) of the child(ren), separation of 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 parents and the child(ren). Whatever time is spent with one parent leaves the other somewhat in the dark as to the time the child(ren) spend(s) with the other parent. For this reason, it is important to agree to share certain types 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.
As discussed above, custody is separated into two different concepts – physical custody and legal custody. Legal custody is a distinct concept from physical or residential custody and is related to the making of important decisions. Thus, legal custody involves decisions regarding health, education and welfare.
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 child(ren) or visitation/parenting time at a particular time. In our experience, the most important consideration regarding joint legal custody is whether or not the two parties can communicate 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 continued involvement with children. This certainly enhances the child(ren)’s feeling that he/she has 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 the parents or the child(ren).
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