One of the biggest factors that need to be considered in a divorce case is the matter of child custody. Divorce can be an emotionally challenging time for the adults in the process of dissolving their marriage but it can be even more difficult if there are children involved.
When it comes to child custody, it’s important to always keep the best interest of the child at the forefront of the discussion. Working with an experienced New York child custody attorney who can help you understand your and your child’s rights in terms of child custody is beneficial. Ryan Besinque, a skilled New York family law attorney, can guide you through the process of seeking custody while protecting your and your child’s best interests. Contact The Law Office of Ryan Besinque today at (929) 251-4477 to schedule a free consultation.
Child Custody and Visitation in New York
As with most matters in a divorce, the concern of who gets child custody is easier to finalize when both parents can come to an agreement that suits them and their children. Even without the intervention of the court, parents are encouraged to discuss child custody and visitation and negotiate on the terms that work best for all parties involved.
If the parties come to an agreement, its terms would be documented in a legal contract. The child custody agreement is legally binding and enforceable, meaning that the parents will be accountable for adhering to the agreement’s terms.
If a mutual agreement cannot be reached, the court will decide on child custody. Most courts will aim to judge equitably however, the most crucial standard to consider would be what arrangement benefits the child the most. If the court determines that the terms of the agreement settled upon by the parents are not in the child’s best interest, it may still judge according to what it deems to be most beneficial to the child based on precedence.
In New York, the court aims to provide the least amount of disruption and keep the child’s life as consistent as possible. The law also recognizes that each family’s case is unique and will carefully consider the family’s individual circumstances when deciding on child custody.
Types of Child Custody in New York
New York law breaks down child custody into two types:
- Physical custody – Physical custody determines whose parent’s home the child will live and spend most of their time in.
- Legal custody – Legal custody refers to the responsibility of making major decisions concerning the child’s well-being including but not limited to healthcare, religion, education, etc.
Custody can be broken down further into the following:
- Joint custody – Parents share legal or physical custody of the child.
- Sole custody – Only one parent is given legal or physical custody
There can be many different arrangements of custody depending on the circumstances of the custody agreement.
Physical Custody
Physical custody can either be agreed upon by the parents or awarded by the court.
When physical custody is jointly shared, the child can spend time in either parent’s household as decided by the terms of the child custody agreement. While it may be difficult to attain an exactly 50/50 split, the parents can be expected to work together and determine a schedule that is convenient for both of them that also takes into consideration the child’s schedule.
If the divorce is contentious, the court may award sole physical custody to a parent. In this case, one parent is awarded primary custody of the child and the other parent will be allotted visitation rights or parenting time based on a predetermined schedule. If there are concerns for the child’s welfare and the court determines that there is a safety risk in allowing the noncustodial parent visitation rights, it may remove the noncustodial parent’s parenting time altogether or order supervised visitation.
What Is Primary Physical Custody?
Primary physical custody refers to the arrangement in which one parent, known as the custodial parent or primary caretaker, primarily lives with the child and is responsible for day-to-day care. This parent is the child’s main caregiver and provides for the child’s everyday needs, including feeding, clothing, and supervising daily activities.
In this arrangement, the child resides with the custodial parent for most of the time, which could range from a majority of the time to all the time, based on the specifics of the custody agreement. The noncustodial parent may have visitation rights or parenting time according to what the court deems as fair and in the best interest of the child.
Primary physical custody is determined through a legal process where factors such as the child’s well-being, the parents’ living situations, and the child’s preference (depending on age) are considered. The goal is to provide a stable and nurturing environment for the child.
It’s important for parents to understand that having primary physical custody means taking on significant responsibilities, including making daily decisions that affect the child’s health, education, and general welfare. This role, while demanding, is crucial in ensuring the child’s development and happiness in a supportive setting.
Legal Custody
Parents who are able to successfully cooperate when deciding on the major decisions regarding their child’s upbringing despite having been divorced may be given the continued opportunity to share this responsibility over their child. However, if the parents cannot agree, sole legal custody may be awarded by the court to a parent. This means that the custodial parent will have sole decision-making authority on the major aspects of the child’s life until the child turns 18.
| Custody Type | Description |
|---|---|
| Physical Custody | Physical custody determines the child’s primary residence, dictating where they will live and spend the majority of their time. It also involves the parent’s responsibility to provide daily care, ensuring the child’s basic needs are consistently met. |
| Legal Custody | Legal custody grants a parent the authority to make significant decisions about the child’s welfare, including aspects like healthcare, education, and religious upbringing. This type of custody often requires collaboration between parents to decide on the best course of action for the child’s future. |
How Does the Court Decide Child Custody?
The court does not automatically decide on a child custody case. First, it should be established whether the court has jurisdiction over the case. The court can only have authority on a child custody case if:
- The child is less than six months old and has lived in New York for their entire life
- The child has lived in New York for at least the past six months and there is no existing child custody order from another state
- The child’s previous child custody order was decided in New York
- The child is residing in New York after an emergency in their home state
Without an existing custody order, it is assumed that both parents will share custody. If a parent requests sole custody, the court will carefully consider each parent’s lifestyle, ability to care for the child, and stability. It will also consider the following circumstances:
- Whether a parent has a history of alcohol or drug abuse
- The parent’s employment and income
- Any history of violence in the household
- Whether the parent’s home is stable
- How much time a parent spends with the child
- Any relationships between the child and extended family
In some cases, the court will also consider the child’s preferences, depending on whether the child has made them through their assigned Attorney for the Child. Older children’s preferences may be given more weight but until the child is 18, the final decision when it comes to custody is still decided by the court.
If the parents do not agree on the terms of the custody order or there have been significant changes to the circumstances since the custody order was served, either parent can file a petition for modification. Unless they can substantiate the changes and provide evidence, the court is not likely to change its decision regarding the custody order.
The matter of your child’s custody shouldn’t be left up to chance. You have the opportunity and the right to present your side of the case. Whether in a negotiation of a child custody agreement with your spouse or representing your rights in court, consulting with an experienced New York child custody lawyer is crucial.
Top-rated New York child custody attorney Ryan Besinque provides quality legal counsel and representation in child custody cases and other family law matters. At the Law Office of Ryan Besinque, we diligently work towards the goal of arriving at an agreement that prioritizes the child’s best interest. Call us today at (929) 251-4477 or fill out our online form to schedule a free consultation.
