Questions about how child custody may be decided are among the top concerns of divorcing parents. They fear losing access to their child or want to limit their spouse’s access. Child custody is an emotional issue. New York law, however, encourages parties to resolve these issues amicably and in the best interests of the children. Here are 5 key points parents should know:
- Child custody has two components. Physical custody concerns where your children live, with whom and when. Legal custody relates to a parent’s decision-making authority – that is, how you and your spouse make decisions about your children’s education, healthcare and religious upbringing.
- Physical custody can be sole or joint. Whoever has physical custody is responsible for the actual physical care and supervision of a child during his or her actual parenting time. In the case of joint physical custody, the child lives with each parent for an approximately equal amount of time. Where one parent is granted primary physical custody, the other parent is typically awarded visitation or parenting time. With parenting time, parents (or a judge where parents can’t agree) determine when and how much time each parent spends with the children.
- Decision-making involves three areas. Disagreements over a child’s education often arise when there are issues related to school choice, tutors, summer camps and extracurricular activities. Sometimes, one parent feels an educational expense is too high and doesn’t want to pay. Healthcare decisions are not usually disputed, but may arise when a child has behavioral issues and there are disagreements about using medication or the need for therapy. Religion may result in disagreements where parents are different religions.
- New York policy is to promote joint custody. Courts prefer parents share custody equally – both physical and legal custody. They don’t want parties to use their children as weapons against each other. Although courts always strive to utilize a best interests of the child standard, absent issues of abuse or neglect, judges will refrain from limiting a parent’s custodial or visitation rights.
- New York judges favor settlement over litigation. Throughout the process, judges will encourage the parties to come to their own settlement involving custody and visitation. Where parties cannot agree, the judge will appoint an attorney for the child and order a forensic evaluation – issues which we will discuss in future posts.
If you are considering divorce and have children, our experienced attorneys can help you decide the best way to proceed.
Contact us for a consultation.
