CUSTODY

About New York State Child Custody

Sole Custody

With sole custody, one parent makes all of the major decisions for the child. The New York court system does have a stated preference for the child to have a relationship with both parents, however. As such, visitations with the other parent are common.

Custody on Consent

If both parents agree to a custody decision, a judge can make an order of "custody on consent," and there is usually no need for a formal hearing.

Disagreement

If the parents cannot come to a consensus, a hearing will be held. There will be testimony from both parents. There may also be a lawyer assigned to the child, and investigations by New York social services agencies and/or mental health professionals. In this case, the final decision is up to the New York court system.

Mother or Father?

The New York State court system has stated that there is no inherent preference towards the mother receiving custody over the father, or vice versa.

About Joint Custody Laws in New York State

Joint custody laws for New York state involve two distinct types of custody: joint physical custody and joint legal custody. Both types of custody impart different rights to both parents, depending on the court order. As with any custody hearing, the decision to award custody is based upon what is best for the child involved

Awarding Joint Legal Custody

Joint legal custody is a common court ordered custody decision in New York state. Joint legal custody allows both parents to make major decisions regarding the child.

Joint Legal Custody Rights

Decisions regarding relocating to another state, schooling, religion and health care choices regarding the child's welfare are decided by both parents awarded joint legal custody.

Joint Physical Custody

Joint physical custody involves a child living with each parent separately for a specified time. This usually involves a carefully planned schedule that allows both parents equal time with the child.

Joint Legal and Sole Physical Custody

When one parent is granted sole physical custody and both parents have joint legal custody, the child lives with the parent with sole physical custody. But, both parents retain the right to make major decisions together.

Changing a Custody Order

Parents desiring a change to a previously court ordered joint custody ruling may file a claim at their local courthouse to amend a custody ruling.

Child Custody & Visitation FAQ

What is custody?

There are two parts to custody. One is the right and responsibility to make decisions for a child (legal custody). The other is where a child will live (residential or physical custody).

How old does a child have to be before a New York court can't make orders about the child's custody and visitation?

Eighteen.

What is the difference between joint custody and sole custody?

In joint custody, the parents make major decisions about the child together - decisions about education, health, and religion, for example. The smaller, day-to-day decisions in joint custody are made by the parent who is physically caring for the child at the time. In sole custody, just one parent has the right to make the major decisions.

In awarding custody, do New York courts favor mothers more than fathers or fathers more than mothers?

No. Today's courts do not favor either parent more than the other. The law says a custody award is based on what's best for the child.

What do courts think about when they decide what's best for a child?

Many things, including:

• • Which parent has been the main care giver/nurturer of the child.
• • The parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child's special needs, if any..
• • The mental and physical health of the parents whether there has been domestic violence in the family.
• • Work schedules and child care plans of each parent.
• • The child's relationships with brothers, sisters, and members of the rest of the family.
• • What the child wants, depending on the age of the child.
• • Each parent's ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so.

Are there ways to settle custody/visitation cases without going to trial?

When you come to court about custody or visitation with your child, you may have a choice: whether to litigate your case before a judge (or referee) or to have your case referred to mediation.

What is Custody/Visitation Mediation?

Mediation is a voluntary and confidential process to resolve conflicts. A trained, neutral person (the mediator) can help you develop a parenting plan that will work for your particular family. The mediator will not make any decisions; you will speak and decide for yourself.

• • Mediation helps you learn how to communicate with the other parent about issues concerning your child.
• • Mediation can help you understand your situation in new ways so you can resolve your conflicts.
• • Mediation gives you the chance to discuss all the issues affecting your child, not just the legal ones.
• • If you reach an agreement, it is sent back to court on your adjourn date. If the judge or referee agrees, it can become a court order.

How does domestic violence affect a custody decision?

Domestic violence against either a parent or a child is considered in deciding custody. Even where the violence was not committed in a child's presence, it can still affect the child and will be considered. Domestic violence may be one act or it can be a pattern of acts. It can be physical, sexual, economic, emotional, or mental abuse.

If one parent has sole custody, can the other parent see the child?

The courts generally want children to have a relationship with both parents. In most cases they will let the parent who doesn't have custody have visits with the child.

What kind of visits?

Visits can be unsupervised, supervised, or therapeutically supervised, and may also involve a safe place of exchange or a monitored exchange:

• • Supervised Visits: A parent can't be alone with the child. The court will choose someone to supervise the visits if there are serious concerns about a parent's ability to act properly with the child or where there has been domestic violence.
• • Therapeutic Supervised Visits: A mental health professional supervises the visits and can try during the visits to improve the parenting skills of the parent.
• • Neutral Place of Exchange: A safe location where a child goes from one parent to the other for visitation. Examples: a police station, school, library, or mall.
• • Monitored Transition: A third person is present when the child goes from one parent to the other for visitation. The reason for this is to make sure of the child's safety and a calm situation for the child.

What is an Attorney for the Child?

An Attorney for the Child (formerly known as a Law Guardian) is an attorney chosen by the court to be the child's lawyer during a custody/visitation case.

What is a Forensic Evaluator?

A Forensic Evaluator is a psychiatrist, psychologist, or social worker chosen by the court. The evaluator gives information about the family in a custody/visitation case. The evaluator will talk to the family members and other mental health professionals who have worked with the family, and can give psychological tests. The evaluator will send a report to the court and can be a witness in the case.

I'm a relative who wants legal custody. What happens in those cases?

The law says grandparents, aunts, uncles, and other relatives who want legal custody have to show the court that the parents are not fit to care for the child - for example, that the parents have abandoned, neglected, or abused the child or that there are other extraordinary issues about the parents' care. If the court agrees about these things, the court can then consider whether it would be best for the child for the relative to have legal custody instead of one or both of the parents.