Determining child custody is one of the most significant aspects of any divorce or separation involving children in New York. Parents, either in agreement or facing a dispute, must understand the different types of custody arrangements. Each arrangement affects the day-to-day responsibilities and long-term decisions regarding the child’s upbringing. Approaching these legal distinctions with clarity can make a profound difference in reaching an outcome that supports the child’s stability and well-being.
If you are going through a custody dispute or want to better understand your legal options, working with a New York child custody lawyer can make a difference. At The Law Office of Ryan Besinque, our experienced attorneys can assist in negotiating fair custody arrangements, including options like the 2-2-5-5 custody schedule, representing you in court, and protecting the well-being of your child throughout the process.
Contact The Law Office of Ryan Besinque today at (929) 251-4477 to schedule a consultation.
Child Custody and Visitation in New York
As with most matters in a divorce, the concern of who gets child custody is easier to finalize when both parents can come to an agreement that suits them and their children. Even without the intervention of the court, parents are encouraged to discuss child custody and visitation and negotiate on the terms that work best for all parties involved.
If the parties come to an agreement, its terms can be put in writing and submitted to the court for approval. If approved by the judge, the agreement can become a custody order that the parents must follow.
If a mutual agreement cannot be reached, the court will decide on child custody. Most courts will aim to judge equitably however, the most crucial standard to consider would be what arrangement benefits the child the most. If the parents cannot reach an agreement, the court will decide custody based on the child’s best interests. Even when parents agree on custody terms, the judge must determine that the proposed arrangement is appropriate for the child before making it part of a court order.
In New York, the court aims to provide the least amount of disruption and keep the child’s life as consistent as possible. The law also recognizes that each family’s case is unique and will carefully consider the family’s individual circumstances when deciding on child custody.
How Can Parents Choose a Custody Arrangement Through Mediation?
Parents who need help reaching a custody agreement can use mediation to work toward a parenting plan with a neutral mediator. The mediator can help them discuss decision-making, parenting schedules, holidays, and communication but does not decide the terms. The parents decide what they can agree on.
If the parents reach an agreement, it can be submitted to the court and can become a custody order if a judge approves it. If mediation does not resolve all of the issues, the remaining custody dispute can still be decided in court. Mediation is voluntary, and not every custody case is appropriate for mediation.
Attorney Ryan Besinque can help a parent prepare for mediation, review proposed custody terms, and explain how an agreement could affect legal and physical custody. He can also assist with drafting or reviewing an agreement before it is submitted to the court.
Types of Child Custody in New York
New York law breaks down child custody into two types:
- Physical custody – Physical custody determines where the child lives and which parent is responsible for the child’s day-to-day care and supervision.
- Legal custody – Legal custody refers to the responsibility of making major decisions concerning the child’s well-being, including but not limited to healthcare, religion, education, etc.
Child Custody Attorney in New York – The Law Office of Ryan Besinque
Ryan Besinque, Esq.
Ryan Besinque earned a Bachelor of Science in Business Administration from the University of Southern California, where he also completed a minor in Psychology and Law. He received his Juris Doctor with honors from the University of San Diego School of Law in 2012, finishing in the top third of his class. During law school, he received the CALI Award for Family Law, served as President of the Phi Delta Phi Legal Honors Society, and received the Outstanding Service Award from the Legal Aid Society of San Diego.
Attorney Besinque began his legal career in Los Angeles, representing private clients and providing pro bono legal services to victims of domestic violence. He is admitted to practice in both New York and California and continues to provide legal services through the Manhattan Assigned Counsel Panel. With years of family law experience, he helps parents address legal and physical custody, parenting arrangements, and disputed custody matters with a clear focus on their children’s needs.
What Is the Difference Between Sole and Joint Custody in New York?
Joint custody means parents share legal or physical custody, while sole custody places that part of custody with one parent. Legal and physical custody do not have to be divided the same way. Parents can have joint custody for major decision-making even when one parent has primary physical custody. The terms full custody and sole custody can also cause confusion because “full custody” is not a separate custody category in New York.
Physical Custody
Physical custody can either be agreed upon by the parents or awarded by the court.
When parents have joint physical custody, the child generally spends approximately equal time living with each parent under an agreed-upon or court-ordered parenting schedule. The schedule can be structured around the child’s school, activities, and other needs.
If joint physical custody is not in the child’s best interests, the court may award primary or sole physical custody to one parent and give the other parent scheduled parenting time. When there are safety concerns, the court may order supervised parenting time or impose other restrictions and, in appropriate circumstances, may suspend parenting time.
What Is Primary Physical Custody?
Primary physical custody means one parent is responsible for the child’s day-to-day care, and the child lives primarily with that parent. This custody type primarily affects the child’s residence and daily routine.
This parent, known as the custodial parent, is the child’s main caregiver and provides for the child’s everyday needs, including feeding, clothing, and supervising daily activities. In this arrangement, the child resides with the custodial parent for most of the time, which could range from a majority of the time to all the time, based on the specifics of the custody agreement.
Primary physical custody is determined through a legal process where factors such as the child’s well-being, the parents’ living situations, and the child’s preference (depending on age) are considered. The goal is to provide a stable and nurturing environment for the child.
Legal Custody
Parents who are able to successfully cooperate when deciding on the major decisions regarding their child’s upbringing, despite having been divorced, may be given the continued opportunity to share this responsibility over their child. However, if the parents cannot agree, sole legal custody may be awarded by the court to a parent. This means that the custodial parent will have sole decision-making authority on the major aspects of the child’s life until the child turns 18.
| Custody Type | Description |
|---|---|
| Physical Custody | Physical custody determines the child’s primary residence, dictating where they will live and spend the majority of their time. It also involves the parent’s responsibility to provide daily care, ensuring the child’s basic needs are consistently met. |
| Legal Custody | Legal custody grants a parent the authority to make significant decisions about the child’s welfare, including aspects like healthcare, education, and religious upbringing. This type of custody often requires collaboration between parents to decide on the best course of action for the child’s future. |
How Does the Court Decide Child Custody?
The court must first have jurisdiction over the custody case. In many cases, New York has jurisdiction if it is the child’s home state, meaning the child has lived here with a parent for at least six consecutive months before the case begins, or from birth if the child is under six months old. Different rules can apply when another state has already issued a custody order or when temporary emergency jurisdiction is needed to protect a child, sibling, or parent.
If a parent requests sole custody, the court will carefully consider each parent’s lifestyle, ability to care for the child, and stability. It will also consider the following circumstances:
- Whether a parent has a history of alcohol or drug abuse
- The parents’ employment and income
- Any history of violence in the household
- Whether the parents’ home is stable
- How much time a parent spends with the child
- Any relationships between the child and extended family
In some cases, the court will also consider the child’s preferences, depending on whether the child has made them through their assigned Attorney for the Child. Older children’s preferences may be given more weight, but until the child is 18, the final decision when it comes to custody is still decided by the court.
If the parents do not agree on the terms of the custody order or there have been significant changes to the circumstances since the custody order was served, either parent can file a petition for modification. Unless they can substantiate the changes and provide evidence, the court is not likely to change its decision regarding the custody order.
The matter of your child’s custody shouldn’t be left up to chance. You have the opportunity and the right to present your side of the case. Whether in a negotiation of a child custody agreement with your spouse or representing your rights in court, consulting with an experienced New York child custody lawyer is crucial.
Who Gets Custody If There Is No Existing Court Order?
In New York, if there is no existing court order, both parents have equal legal rights to physical and legal custody. Either parent can make decisions and keep the child without violating the law until a court issues a formal order.
How Custody Works for Unmarried Parents in New York
In New York, custody arrangements for unmarried parents follow specific legal guidelines. When a child is born to unmarried parents, the birth mother is initially granted sole legal and physical custody. This gives her the legal authority to make decisions for the child unless the father takes steps to establish his parental rights.
For fathers, the first step in obtaining custody or visitation rights is establishing legal paternity. Unmarried parents can sign an Acknowledgment of Parentage, or paternity can be established through a court order. Once paternity is legally established, the father has the right to request custody or visitation through the court system.
Custody and visitation decisions in New York are always based on what is in the child’s best interest. This standard prioritizes the child’s well-being over the preferences of either parent. Factors such as the child’s needs, each parent’s ability to provide a stable home, and the relationship between the child and each parent are carefully considered by the court.
Once paternity is legally established, both parents can pursue custody or visitation rights. The court decides these issues based on what is in the child’s best interest.
Understanding these guidelines can help unmarried parents handle custody matters more effectively while focusing on creating a positive environment for their child.
New York child custody attorney Ryan Besinque provides quality legal counsel and representation in child custody cases and other family law matters. At The Law Office of Ryan Besinque, we work diligently to reach agreements that prioritize the child’s best interests. Call us today at (929) 251-4477 or fill out our online form to schedule a consultation.
Frequently Asked Questions
What Are the Main Types of Child Custody in New York?
New York custody has two main parts: legal custody and physical custody. Legal custody concerns major decisions for the child, while physical custody concerns where the child lives and receives day-to-day care.
Does Joint Custody Mean 50/50 in New York?
Not necessarily. Parents can share joint legal custody even when one parent has primary physical custody. Joint legal custody concerns shared decision-making, while the child’s parenting schedule depends on the physical custody arrangement.
What Does Primary Physical Custody Mean in New York?
Primary physical custody means the child lives mainly with one parent, who handles most of the child’s day-to-day care. The parenting schedule depends on the custody agreement or court order.
Can Parents Use Mediation to Decide Child Custody in New York?
A neutral mediator can help parents work through parenting schedules, decision-making, holidays, and communication. An agreement can be submitted to the court and become a custody order if a judge approves it. Call The Law Office of Ryan Besinque at (929) 251-4477 to discuss your mediation options and review proposed custody terms.
How Does a New York Court Decide Child Custody?
The court focuses on the child’s best interests. Factors can include each parent’s ability to care for the child, home stability, family relationships, time spent with the child, and any history of violence or substance abuse.
Who Has Custody If There Is No Court Order in New York?
If there is no custody order, both legal parents have equal rights to physical and legal custody. A court order can later establish a formal custody and parenting arrangement.
