Posted by DivorceLine in New York Child Custody Laws
New York Child Custody Laws: What is Physical Custody?
Physical custody defines where the child will live also called residential or physical custody.
Q. What is custody?
A. There are two parts to custody. One is the right and responsibility to make decisions for a child (legal custody). The other is where a child will live (residential or physical custody).
Q. How old does a child have to be before a New York court can’t make orders about the child’s custody and visitation?
A. Eighteen.
Q. What is the difference between joint custody and sole custody?
A. In joint custody, the parents make major decisions about the child together – decisions about education, health, and religion, for example. The smaller, day-to-day decisions in joint custody are made by the parent who is physically caring for the child at the time. In sole custody, just one parent has the right to make the major decisions.
Q. In awarding custody, do New York courts favor mothers more than fathers or fathers more than mothers?
A. No. Today’s courts do not favor either parent more than the other. The law says a custody award is based on what’s best for the child.
Q. What do courts think about when they decide what’s best for a child?
A. Many things, including:
a) which parent has been the main care giver/nurturer of the child
b) the parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child’s special needs, if any the mental and physical health of the parents
c) whether there has been domestic violence in the family
d) work schedules and child care plans of each parent
e) the child’s relationships with brothers, sisters, and members of the rest of the family
f) what the child wants, depending on the age of the child
g) each parent’s ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so
Q. How does domestic violence affect a custody decision?
A. Domestic violence against either a parent or a child is considered in deciding custody. Even where the violence was not committed in a child’s presence, it can still affect the child and will be considered. Domestic violence may be one act or it can be a pattern of acts. It can be physical, sexual, economic, emotional, or mental abuse.
Q. If one parent has sole custody, can the other parent see the child?
A. The courts generally want children to have a relationship with both parents. In most cases they will let the parent who doesn’t have custody have visits with the child.
Q. What kind of visits?
A. Visits can be unsupervised, supervised, or therapeutically supervised, and may also involve a safe place of exchange or a monitored exchange:
a) Supervised Visits: A parent can’t be alone with the child. The court will choose someone to supervise the visits if there are serious concerns about a parent’s ability to act properly with the child or where there has been domestic violence.
b) Therapeutic Supervised Visits: A mental health professional supervises the visits and can try during the visits to improve the parenting skills of the parent.
c) Neutral Place of Exchange: A safe location where a child goes from one parent to the other for visitation. Examples: a police station, school, library, or mall.
d) Monitored Transition: A third person is present when the child goes from one parent to the other for visitation. The reason for this is to make sure of the child’s safety and a calm situation for the child.
Q. What is a Law Guardian?
A. A Law Guardian is an attorney chosen by the court to be the child’s lawyer during a custody/visitation case.
Q. What is a Forensic Evaluator?
A. A Forensic Evaluator is a psychiatrist, psychologist, or social worker chosen by the court. The evaluator gives information about the family in a custody/visitation case. The evaluator will talk to the family members and other mental health professionals who have worked with the family, and can give psychological tests. The evaluator will send a report to the court and can be a witness in the case.
Q. I’m a relative who wants legal custody. What happens in those cases?
A. The law says grandparents, aunts, uncles, and other relatives who want legal custody have to show the court that the parents are not fit to care for the child – for example, that the parents have abandoned, neglected, or abused the child or that there are other extraordinary issues about the parents’ care. If the court agrees about these things, the court can then consider whether it would be best for the child for the relative to have legal custody instead of one or both of the parents.
Q. I want to have a court custody or visitation order changed. How do I do this?
A. You start a case to “modify” the order. Talk to a clerk in the court where the order was made. Custody and visitation orders may be changed if the court decides that things have changed and that modifying the original order would be best for the child.
Q. Do I need a lawyer for a Family Court custody or visitation case?
A. Only you can decide this for your case. You have the right to hire a lawyer. If you can’t afford a lawyer, the court can appoint one for you free of charge if the court decides that you qualify for this.
New York Child Custody Laws: What is Legal Custody?
Legal custody defines the right and responsibility to make decisions regarding the raising and upbring of the child.
New York Child Custody Laws: Joint Custody vs. Sole Custody
Joint custody means the parents (joint custodians) make major decisions about the child together such as decisions about the child’s education, health, and religion. The routine day-to-day decisions in joint custody are made by the parent who is physically caring for the child at the time. Sole custody means only one parent (the parent who has sole custody) has the right to make the major decisions about the child.
Some Factors the Court may consider to determine What’s Best for the Child
The following list is not a complete list of factors, but some general factors the court may consider.
a) Which parent has been the primary caregiver or main nurturer of the child
b) The parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child’s special needs, if any, the mental and physical health of the parents
c) Whether there has been domestic violence within the family
d) The parent’s work schedules, parent’s availability, and child care plans of each parent
e) The child’s relationships with siblings, brothers, sisters, and members of the family
f) The child’s wishes or preference depending on the age of the child, maturity of the child, child’s reasons for his/her wishes
g) Each parent’s ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so.
