This section addresses general questions pertaining to custody and parenting time. It is not meant to be a complete legal guide. Each case is unique, and your situation may not be covered by this information.
When children are involved, your relationship with your spouse does not end upon divorce. You may have continued contact with your spouse regarding decisions affecting your children, parenting time and other parental responsibilities.
Custody of minor children involves two main components: a) Legal Custody which refers to major decisions that affect the children’s health and well being and b) Physical Custody which refers to the children’s primary residence. The parent who does not have physical custody of the children shall be entitled to parenting time with the children (also known as “visitation” or “parental access”).
FACTORS IN DETERMINING CUSTODY
The Court considers what is in the best interest of the child when determining custody, in which several factors are considered:
Who has been the primary caretaker of the child
The ability and willingness of each parent to care for the children
The mental and physical health of all individuals involved
Quality of home environment
Parental guidance that can be provided by each parent
The relationship of the child with his parents, siblings and any other person who may significantly affect the child
The child's adjustment to the home, school and community
The respect each parent accords for the parental rights of the other parent
The willingness and ability of each parent to cooperate
The ability of each parent to provide for the child’s economic, emotional and intellectual needs
The suitability of parenting plans submitted by each party
Joint Legal Custody:
With joint legal custody, the parties have equal rights of decision making that affect the child. Joint legal custody grants both parents the right to make major decisions regarding a child. These decisions include but are not limited to medical and dental treatment, education, child care and religious upbringing. Unlike many other states, there is no presumption in New York that joint legal custody is in the best interest of the child. Today, joint legal custody agreements are more common.
Joint legal custody does not mean joint physical custody. It is common for parents to agree to joint legal custody with the child residing primarily with one parent.
If the parties cannot agree on a joint legal custodial arrangement, then a court will determine whether there will be joint legal custody or whether one parent will have final say in the different spheres of decision-making.
Joint Physical Custody:
With joint physical custody, each parent has equal time with the child. This type of arrangement is less common. However, there are situations where parents agree to a joint physical custodial arrangement, such as when parents intend to reside in the same school district and the parents have a good working relationship with one another.
Sole Physical Custody:
If the parents cannot agree on physical or legal custody, then a court will make a determination as to which parent should have sole physical and legal custody. A law guardian, who is an attorney appointed by the court to represent the child, will be retained by the parties. The law guardian’s role is to be an advocate for your child. In addition, if custody cannot be agreed upon by the parties, a court may also appoint a forensic psychologist or psychiatrist to help guide and assist the court in making a ruling on custody and parenting time.
Parenting Time (Visitation Rights, Custodial Rights of Access):
Parenting time (also known as “visitation rights” or “custodial rights of access”) is a schedule provided to the non-custodial parent to give that parent access to the child. If the parties cannot agree upon parenting time, then the court will determine such a schedule. Generally, parenting time consists of weekend parenting time; weekday parenting time; and a division of the holidays, school recesses, and summer vacation. Parenting time may also take into account the age and needs of the child.
You and your spouse may agree to a specific parenting time schedule. If you cannot agree on parenting time, the court will specify the parenting time.
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