Child Custody & Visitation
Child Custody & Visitation
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What Is Child Custody and Visitation?
Custody is the authority to make decisions about the child’s care, including education and medical care.
There are two types of custody:
- Sole custody means that one parent has the authority to make decisions about the child. The non-custodial parent (usually the one not living with the child) may have the right to receive medical or education information but he/she does not make the decisions
- Joint custody means that two parents (and sometimes other caregivers) share the authority to make decisions about the child. With joint custody, the parents must communicate well enough to keep each other informed of the child’s needs and to make decisions together
- Decision-making authority is separate from where the child lives or visitation.
- Courts in New York use different phrases like “physical custody” or “primary placement” to describe where the child lives primarily. Courts use phrases like “visitation” or “secondary placement” to describe the parenting time for the other parent
- The court can set a visitation schedule that suits the child and the parents’ schedules or the court can keep visitation as agreed between the parents
New York's custody laws are not written in any statute. Instead, they have evolved over the years by numerous court decisions. Regardless of how New York determines its custody laws, it’s important to understand that conceptually, custody cases are unlike most other cases. In most court proceedings, the events leading to the lawsuit took place in the past; the facts are frozen, and the court looks back in time to reconstruct those facts.
In a custody case, the court is being asked to look to the future and predict which parent will be the better parent in rearing the child. The courts will then employ a number of methods which, when taken together, help the court determine what’s in the best interests of the child.
Most people are familiar with the term "best interests," yet it continues to defy a firm definition. Custody cases are extremely fact sensitive and each case is decided on its own merits; although, there are certain definitions which are constant from case to case as well as factors which the courts will consider in determining an initial custody determination.
Physical Versus Legal Custody
While there is no statutory distinction between physical and legal custody, understanding these concepts is the first step in understanding a custody proceeding.
Physical custody refers to where the child lives and is sometimes known as residential custody.
Legal custody refers to which parent has the legal authority to make decisions involving the child. The three most significant issues involving legal custody are religious, educational, and medical decisions. An order of custody is always subject to an order of visitation for the non-custodial parent. In some states, the terms custody and visitation are not used, instead the term is "parenting time." New York is slowly moving in that direction; however, no matter what term is used, the underlying concepts remain the same.
Joint Custody
Joint custody means joint legal custody, and not how much time the child spends with each parent. Joint custody gives both parents equal decision making authority. This allows for both parents to play an equal role in rearing their children, provided both parents can work together to make joint decisions. However, equal authority also means that each parent has an absolute veto over the decisions of the other parent, meaning that complete deadlock on decisions involving the child will result if a mutual agreement cannot be reached. For this reason, courts in New York have held that joint custody is appropriate on consent of both parties but is not appropriate after a hearing.
Pendente Lite or Temporary Custody
Pendente lite or temporary custody is a custody order issued by the court once the case has been filed but before trial. Pendente lite means "pending the trial" and this term is usually used in supreme court, while temporary custody is usually used in family court. At the conclusion of the case, any pre-trial temporary orders are vacated and a final order is issued.
The following is a list of factors considered by a court in determining custody. This list is by no means exclusive; the court can consider factors which are not listed here and may choose to ignore any of the listed factors. This list should be used to get a rough idea what a court will consider, keeping in mind that each custody case is extremely fact specific:
- Age of parents
- Alcohol and drug use
- Availability of parents
- Disability and physical health
- Finances of parents
- Findings of child neglect/abuse
- The forensic evaluation
- The home environment
- The law guardian
- Marital fault
- The parent's observable behavior in court
- A parent's willingness to foster the child's relationship with the other parent
- Preferences of the child
- Primary caretaker
- Religion
- Siblings
- Voluntary custodial agreements
Who Can Get Visitation in New York?
Either parent, siblings, half-siblings, and grandparents can ask for visitation. The court will determine whether visitation is in the child’s best interest. A parent is entitled to frequent and meaningful visitation, unless it is shown that it would be harmful to the child.
If you or someone you know is struggling with these sensitive and complex issues, let Beth Rosenthal guide you through the process. It’s imperative that you contact a seasoned New York family law attorney right away because doing so will maximize your chances of receiving the best possible outcome in your case. After helping numerous clients achieve a successful resolution in their matter, Beth A. Rosenthal, P.C. is beyond experienced and best suited to help you pursue the outcome you deserve! Call us today for a free consultation.
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