Child Custody in a New York Divorce

Physical and legal custody

There are two aspects of custody: physical and legal. Physical custody refers to the custody exercised by the parent who spends the majority of the time with the children. The parent with physical custody over the children is the parent who lives with the children most of the time. Legal custody refers to the right to make important decisions for the child.

Courts can grant either joint or sole custody in both physical or legal custody. Thus, there are four types of custody arrangements:

• sole physical custody
• joint physical custody
• sole legal custody
• joint legal custody

Joint legal custody is the norm because courts would like both parents to exercise decisional responsibility for their children. Sole legal custody grants only one parent the responsibility for making major decisions for the child. Although it is not typical, it is also not rare. Sole legal custody is generally granted when one parent has a history of domestic violence, physical abuse, untreated mental illness, or substance abuse.

In the same way, sole physical custody is not the norm but granted in cases of domestic violence, mental illness, or substance abuse. Sole physical custody does not mean the other parent will not be able to see the children. The non-custodial parent may be given visitation rights which could include overnight visits. Joint physical custody, on the other hand, is the norm granted during divorce or separation to enable both parents to spend an almost equal amount of time with their children.

Given the four types of custody arrangements, the court may grant sole physical custody to one parent but joint legal custody to both parents. For example, when parents have separated and one parent is in the military and has been deployed abroad, the parent in the US may be granted sole physical custody, but joint legal custody is still exercised by both parents. This means that, even if the child lives primarily with the parent in the US, important decisions regarding the child’s education, healthcare, extracurricular activities, and religion rest on both parents.

The same situation may apply when two parents live in separate states. For example, J Lo, who has moved to California from Florida, may be granted sole physical custody over the children, but joint legal custody (which means the power to decide on important decisions regarding the children) will still rest on both parents, J Lo and Marc Anthony.

In the case of the military parent, when the military parent returns with plans to permanently stay in the US, the military parent may request for a change in the custody order, given the change in parental circumstances. When there is a change in parental circumstances, a child custody lawyer can help you modify a custody order.

Best interests of the child

The court, in determining custody, will always consider the best interests of the child. In determining what is in the best interest of the child, several factors are considered, such as the voluntary agreement between the parents, the child care arrangements if the child is to live with a parent, the parent who was primarily taking care of the children prior to the separation or divorce, any history of drugs and alcohol abuse of either parent, the mental health of the parents, the child’s preference, where the child’s siblings will live, educational opportunities, the home environment, and finances of each parent. More information on the best interests of the child and information about what is considered an unfit parent can be found here.

The custody hearing

Domestic Relations Law §§ 240 and 70 provides that either parent has no prima facie right to the custody of the child. A mother should not necessarily be presumed to have custody of the children.

In a custody case, the court appoints an attorney for a child. This attorney will talk to the child in private and tell the judge what the child wishes. A caseworker may also be assigned to visit the homes of the parents, speak to the other people who live in the home, such as the step-parent and other siblings, and prepare a report about the parents asking for custody. In the hearing, each party will also present their own witnesses who can support their case. The judge may also speak to the child privately in his office without the presence of the parents. After taking into consideration all these, the judge will make a custody order based on the best interests of the child.

Previously, it was a case of who was an unfit parent. Recent jurisprudence recognizes that both parents may be fit. The one awarded custody is generally the more fit parent over the less fit parent, given the factors that determine the best interests of the child. Much of the work in a contested custody case is assembling the record on those factors and presenting it to the court.

Concurrent issues

A custody order is not final and may still be modified. Sometimes, parents may relocate due to remarriage, job changes, or financial opportunities, and need a modification of the custody order. There could be loss of employment, financial hardships, or a medical issue that might arise requiring a change in the custody order. Standing to seek custody is its own threshold question. Under Matter of Brooke S.B. v. Elizabeth A.C.C., a non-biological, non-adoptive partner may have standing to seek custody or visitation where the couple agreed to conceive and raise the child together, but that showing is fact-specific and is litigated in Family Court rather than in a divorce.

Child custody can be contentious and emotional, and no lawyer can promise a particular custody arrangement; the decision rests with the court and turns on the facts of your family. What counsel does is make sure the court hears an accurate account of your role in your children's lives. Beyond the basic guideline amount, a parent can also ask the court to address add-on expenses such as childcare, unreimbursed medical costs, and in some cases private school tuition and extracurricular activities.

Where custody cases are heard in New York

Custody disputes can be filed in two different courts. Family Court has concurrent jurisdiction with the Supreme Court over custody and visitation matters. If the parents are not divorcing, the case usually starts in Family Court with a petition for custody or visitation. If the parents are in the middle of a matrimonial action, custody is decided as part of the divorce in Supreme Court. Once a case is in Supreme Court, the matrimonial part will generally consolidate any related Family Court matters.

Modifying an existing custody order

An existing custody order can be modified when there has been a substantial change in circumstances and a modification would serve the child's best interests. Common changes that justify revisiting custody include a relocation request, a change in either parent's work schedule, a parent's deteriorating health, new evidence of substance abuse or domestic violence, the child's evolving needs as they age, and the child's own preference as they mature. The parent seeking the modification carries the burden of proving both elements.

Enforcing a custody or parenting order

When a parent denies court-ordered access, refuses to return the child after parenting time, or repeatedly interferes with the other parent's relationship with the child, the remedy is a Violation Petition or an enforcement motion. Sanctions can include make-up parenting time, a modification of custody, counsel fees, and in serious cases a finding of civil or criminal contempt. Documenting violations contemporaneously, in writing, makes enforcement much easier.

Practical tips for clients in a custody dispute

Custody cases are decided on patterns, not on isolated incidents. Judges, attorneys for the child, and forensic evaluators look at how each parent has actually shown up over time. Some practical guidance that helps clients present the strongest case possible:

• Keep a parenting journal that records pickups, drop-offs, school events attended, medical appointments, and missed exchanges.
• Communicate with the other parent in writing whenever possible. Many parents use co-parenting apps that create a permanent record of communications.
• Avoid disparaging the other parent in front of the child or on social media. Courts take this seriously.
• Be on time for parenting exchanges and follow the existing order even if you disagree with it. The order remains in effect until a court changes it.
• Cooperate with the attorney for the child and with any court-appointed forensic evaluator.

If you are getting divorced in New York and custody is part of your case, we can help. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected]. We handle custody within a divorce and do not take standalone Family Court matters.