Garden City Law Firm

In New York, child custody and support are often the most disputed areas in divorce negotiations. Unfortunately, children are too often used as a bargaining chip.

Custody is the legal responsibility for the care and control of children under the age of 18. When the court issues a custody order, it will address these two parts of custody: legal and physical. Legal custody is the right to make major decisions about your child. Major decisions generally include issues pertaining to the child’s education, health, general welfare, religious upbringing and participation in extracurricular activities.

Physical custody is the actual physical possession and control of a child (under 18 years old). This covers where a child will live (residential or physical custody) on a day-to-day basis as well as for school district purposes.

Types of Custody Arrangements

A judge may give either parent sole legal custody. A parent with sole legal custody has the right to make major decisions about the child, while the other parent does not have that right.

A judge may also give parents joint legal custody if both parties agree to this arrangement. In this case, both parents would share the same rights and responsibilities to make decisions affecting their child’s life. Joint custody involves the parents communicating with each other and compromising on decisions about the child. Sometimes, joint custody can be structured in such a way that each parent has total control over a specific area of the child's life. For instance, one parent has sole control over medical issues and the other parent has sole control over education issues.

In New York, if you have physical custody of your child, then your child lives with you, and not with the other parent. A parent with primary physical custody is sometimes called a child’s “primary caretaker,” or “custodial parent”. Generally, the custodial parent is the person who is responsible for the everyday care of your child and the decisions that affect that care.

If judge orders shared physical custody, your child will live with both you and the other parent, with both parents having frequent contact with the child. The child may or may not spend equal amounts of time with each parent. When there is shared physical custody, both parents share the right of making day-to-day decisions about their child and the responsibilities of caring for their child.

A judge may devise different custody arrangements, including awarding shared physical and joint legal custody; or primary physical to one party and joint legal custody; or sole physical and sole legal custody to one party. The custodial arrangement a court award is dependent upon the specific facts of each case.

Where one parent is designated primary physical custody, the other parent is entitled to visitation (“also referred to as parenting time”) with the child(ren). Generally visitation includes alternating weekends, some form of weekday visitation, alternating major holidays and a consecutive period in the summer. Additionally, if one parent has a rotating shift work schedule, a parenting time schedule can also be fashioned to fit a parent’s particular work routine.

What does a Court look for when deciding custody?

Each custody determination is based on the specific facts of that case. However, the courts generally look at the following factors to determine what is in the best interest of the child(ren).

1. Who has been the child’s primary caretaker
2. The quality of each parent’s home environment
3. The fitness of each parent to care for the children (taking into account any mental illness that the parent may suffer from)
4. Which parent the child is living with now and how long that arrangement has been in place
5. Each parent’s ability to provide emotional and intellectual support for your child
6. Which parent the child wants to live with, if they are old enough to make an informed decision
7. Whether the child would be separated from any siblings
8. Whether either parent has been abusive to the child.

How do I file for custody?

Generally, if both parents are married and seeking a divorce, one or both parents would file for custody as part of the divorce proceeding. If there is a divorce action pending in Supreme Court, then that parent must file for custody under the divorce action. If the parents are already divorced and one of the parents is seeking to modify the existing custodial arrangement, that parent may bring their action in either Supreme or Family Court. If the parents were never married or are married but have not started a divorce, either parent can file for custody in Family court in the county in which the child has been living for at least six months.

If you are thinking about seeking an order for custody or are looking to modify an existing order of custody, contact our office to arrange a consultation.

How do I modify an existing custody order?

A parent may seek to modify an existing custody order by filing a motion or petition with the proper Court. To modify an existing custody order, the parent seeking the modification must show there that there has been a substantial change of circumstances since the final order and that the change would be in the best interest of the child(ren).

Can I relocate out of the state with my children?

If you are looking to permanently move out of state (or move within the state to a distant location that would interfere with the other parent’s visitation schedule), then you need to either get the permission of the other parent or of a Court of competent jurisdiction. If you have to apply to the court for permission, the court will look at your request to move as a request for a modification of the custody order.

In order for a court to grant a relocation application, you must show that the relocation would be in the child(ren)’s best interest. In addition, the Court will look at the circumstances of each particular case including;

1. Each parent's reasons for seeking or opposing the move,
2. The quality of the relationships between the child and the parents
3. The impact of the move on the quantity and quality of the child's future contact with the noncustodial parent
4. The degree to which the custodial parent's and child's life was enhanced economically, emotionally and educationally by the move
5. The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements*
*See Tropea v. Tropea, 87 NY2d 727 [1996]