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 us 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 would be documented in a legal contract. The child custody agreement is legally binding and enforceable, meaning that the parents will be accountable for adhering to the agreement’s terms.
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 court determines that the terms of the agreement settled upon by the parents are not in the child’s best interest, it may still judge according to what it deems to be most beneficial to the child based on precedence.
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.
Types of Child Custody in New York
New York law breaks down child custody into two types:
- Physical custody – Physical custody determines whose parent’s home the child will live and spend most of their time in.
- 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.
Custody can be broken down further into the following:
- Joint custody – Parents share legal or physical custody of the child.
- Sole custody – Only one parent is given legal or physical custody
There can be many different arrangements of custody depending on the circumstances of the custody agreement.
Physical Custody
Physical custody can either be agreed upon by the parents or awarded by the court.
When physical custody is jointly shared, the child can spend time in either parent’s household as decided by the terms of the child custody agreement. While it may be difficult to attain an exactly 50/50 split, the parents can be expected to work together and determine a schedule that is convenient for both of them that also takes into consideration the child’s schedule.
If the divorce is contentious, the court may award sole physical custody to a parent. In this case, one parent is awarded primary custody of the child, and the other parent will be allotted visitation rights or parenting time based on a predetermined schedule. If there are concerns for the child’s welfare and the court determines that there is a safety risk in allowing the noncustodial parent visitation rights, it may remove the noncustodial parent’s parenting time altogether or order supervised visitation.
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 affects school placement, healthcare decisions, and the child’s daily routine. The other parent usually receives visitation rights or parenting time according to what the court deems as fair and in the best interest of the child.
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.
It’s important for parents to understand that having primary physical custody means taking on significant responsibilities, including making daily decisions that affect the child’s health, education, and general welfare. This role, while demanding, is crucial in ensuring the child’s development and happiness in a supportive setting.
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 does not automatically decide on a child custody case. First, it should be established whether the court has jurisdiction over the case. The court can only have authority on a child custody case if:
- The child is less than six months old and has lived in New York for their entire life
- The child has lived in New York for at least the past six months, and there is no existing child custody order from another state
- The child’s previous child custody order was decided in New York
- The child is residing in New York after an emergency in their home state
Without an existing custody order, it is assumed that both parents will share custody. 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 paternity. One of the simplest ways to do this is by being named on the child’s birth certificate at birth. Once paternity is legally confirmed, the father gains legal 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.
If the father’s name is on the birth certificate, disputes involving custody or child support are generally handled as if the parents were married. This means both parents have equal standing in pursuing custody or visitation rights, provided these arrangements align with 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.
Top-rated 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.
