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Child Custody

When a couple dissolves their relationship through divorce or separation, one of the more contested and complicated issues is child custody. In New York, there is no presumption that one parent is more entitled to custody than the other, so the parents are free to come to their own arrangement or, if they cannot agree, let the courts decide.

Types of child custody in New York

Physical custody addresses where a child lives. When a parent receives sole physical custody, it means that the child lives with him or her and, unless circumstances advise otherwise, has scheduled visitation with the other parent. Joint physical custody is when the child lives with both parents (normally on a 50/50 basis in terms of time), and is usually awarded if the parents live relatively close to one another.

Legal custody refers to the right of a parent to make important decisions for the child, such as where they go to school, what medical treatment they receive, and what religious faith they are brought up in. When a parent has sole legal custody, he or she is the only one empowered to make such decisions. With joint legal custody, both parents have input into the child’s upbringing and healthcare.

What if parents can’t agree?

The best case scenario is that the parents are willing to cooperate on a custody arrangement that is in the best interests of the child. When this proves impossible, a judge will have to step in and issue a custody order after considering factors like the following:

  • Which parent has traditionally been the primary caretaker
  • The child’s wishes (the older the child, the more weight is given to their preferences)
  • The work schedule and availability of each parent
  • Each parent’s mental and / or physical health
  • Any history of alcoholism or drug use
  • Any history of child or spousal abuse

Before issuing a custody order, the court will schedule a hearing and listen to testimony from both parents as well as any other parties with insights that can make it easier to render a decision. Examples include:

  • Relatives
  • Teachers
  • Mental health professionals

In some cases the court may order a more in-depth investigation, such as sending social workers or mental health experts to carry out home visits. Once all relevant information is assembled, the court will use it to reach a decision and issue a custody order.

If you are a parent facing a child custody dilemma, then contact a New York family law attorney who understands both the process and the factors involved in judicial decision-making. They will protect your rights as a parent while working to ensure that you enjoy as much access to and time with your children as possible.


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