If you live in New York, are considering divorce and have children, it’s important that you and your ex understand the legality of child custody. Each New York custody order addresses joint, sole, legal, and physical custody, even if the order doesn’t discuss the custody in those terms. Child custody can be difficult to understand and very overwhelming.
Here’s some of the basics:
Legal Custody
Joint legal custody, or as termed in New York “joint custody”, means that both parents have the right to decide major issues for the child. Parents can agree to a joint custody agreement when their divorce is amicable, and the judge will typically approve it. However, New York courts will not usually force joint parenting on a family. Neither parent can override the other in joint legal custody. Essentially, the term “joint custody” refers to the legal decision-making. Parents can share joint legal custody in New York. But, if parents are unable or unwilling to cooperate, the court will usually grant custody to only one parent.
Physical Custody
Typically, a New York court will name one parent as the custodial or primary parent, and the other parent as the non-custodial parent. However, New York courts will sometimes order a situation that amounts to “joint physical custody”. In this situation, both parents are considered custodial. For example, a child might live with one parent one week, and with the other parent the next week, and so on. Just a note: the primary caretaker of the child is likely to be important in making decisions regarding custody.
Confusing Factors
In New York, all custody orders include a visitation schedule of some sort, unless the court deems one parent unfit. If parents share time with their child on an almost equal basis, one parent is still considered the primary and the other is the non-custodial. Whenever the child is with the non-custodial parent, that parent is responsible for making day-to-day decisions, like whether or not the child should go to the doctor for a cold. However, this does not mean the parents share joint legal custody. Each parent has the right to make minor decisions while the child is residing with them.
Duration of Custody Orders
Custody isn’t permanent. In a divorce, a New York judge can order a temporary custody arrangement while the litigation is pending. When the divorce is finalized, a judge can carry the terms of the temporary order into a permanent order. They can also modify the arrangement as needed if the temporary arrangement wasn’t working out well. It’s important to know that either parent can still petition to modify the final custody order if circumstances change.
Other Notes About Child Custody in New York
- The child must have lived in New York for the past six months for the New York courts to have jurisdiction on your case. If the child is younger than six-months, the child must have been born in New York, except under extenuating circumstances.
- Neither parent has preferred right to custody of child.
- Either parent can apply for custody in Family Court.
- The court can consider where the child chooses to live but doesn’t have to follow the child’s wishes. However, the older the child is, the more likely the court will consider the child’s wishes.
- Custody and visitation can be changed if circumstances affect the child’s interests.
- Court-ordered visitation cannot be refused unless it’s believed that child will be put in danger.
- If the parents were unmarried, the father must first establish paternity for custody and visitation rights.
While this covers some of the basics of child custody law in New York, it’s highly likely that you will benefit from seeking legal counsel on these matters. Child custody can be very complicated and overwhelming, but our Nassau County family law attorneys at Rieger, LLP can help you. If you’d like to discuss your particular situation, please contact Rieger, LLP today.