When parents fight over custody, it’s not unusual for one or both sides to declare they want full custody. However, being granted full custody is relatively rare. Generally, New York courts favor joint custody. The rationale is that children should have an equal relationship with both parents except if a parent poses a danger to or is neglectful of the child. Accordingly, before seeking full custody, you should understand a few key points.
What Constitutes Custody?
Child custody has two components. Physical custody concerns where your children live, with whom and during what periods. Legal custody involves who has decision-making authority over your children’s education, healthcare and religious upbringing.
Joint physical custody is possible where children can spend equal amounts of time with each parent. If that’s not realistic, one parent may have primary physical custody and the other gets agreed-upon parenting time with the children.
Legal custody can be joint or sole. Typically, it is joint requiring parents to make decisions together. If they cannot, they may need to go to court to resolve the dispute or try alternative methods of dispute resolution, such as using a parenting coordinator or mediation.
Full custody means that a parent has sole physical and legal custody. Further, there is no or minimal visitation allowed by the non-custodial parent.
How Do Courts Decide Custody?
In awarding custody and parenting time, courts are required to consider various factors to determine what is in the best interests of the child. However, judges strongly encourage parents to come to their own agreement and will only step in if the parties cannot settle on their own.
If the judge does become involved, an attorney for the child will likely be appointed to represent the child’s interest. A forensic psychologist or mental health professional may also be brought in to evaluate the children’s relationship with each parent resulting in a report that details the forensic’s perspective thereto. If the parties still cannot settle, the matter will be litigated at trial.
As noted, the standard for deciding who gets custody is what is in the best interest of the child. Because of the strong preference for allowing both parents to have a relationship with their children, full custody is rarely seen as in the best interest of the child since it effectively minimizes if not eliminates one parent’s relationship with his or her child. Consequently, a parent will be granted at least some parenting time unless there is evidence of abuse or neglect warranting supervised visitation. Even in the case of substance abuse or mental illness, courts will likely provide some form of visitation with conditions rather than give full custody to one parent.
Is Your Request for Full Custody Justified?
It is not recommended to ask for full custody unless there is clear evidence that your spouse legitimately is a danger to the health and safety of your children. Without that evidence, the judge is likely to look unfavorably on you and see your request as inappropriate and unreasonable. The better way to go may be to ask for conditions to be put on visitation first after establishing a basis for the conditions to be imposed. If your spouse fails to comply with the conditions, that failure could help establish your case for full custody.
In addition, if custody is contentious, you should consider getting a parenting coordinator or parenting coach to help address these issues with your spouse. In doing so, you may be able to reach agreements with the other parent of your children on a variety of parenting issues as well as establish your good faith efforts to resolve the problems with your spouse in case you need to request full custody in the future.
If you are considering divorce or you are divorced but experiencing conflicts with your ex regarding child custody or visitation, contact us for consultation.
