Divorce or separation can be painful, especially when children are involved. When New York parents separate or divorce, parents will need to reach an agreement on custody or leave matters up to a judge to decide. In either case, a child’s needs are at the heart of any custody decision.
When deciding custody, parents or a judge will have to determine both physical and legal custody rights. Within the physical and legal custody distinctions, parents may be awarded joint or sole custody rights over their children.
“Physical custody” refers to where the child resides. A parent with primary physical custody (sometimes called “full custody”) lives with the child. Parents can share physical custody (called “joint physical custody”) or one parent may have sole physical custody rights.
Joint physical custody in New York means that both parents spend substantial parenting time with the child. However, parents with joint physical custody won’t necessarily spend equal time with their child. For example, one parent may have three nights per week with the child, while the other parent has four nights per week.
A parent with “legal custody” can make major educational, medical, religious, or legal decisions on the child’s behalf. In most cases, it’s in a child’s best interests for parents to share legal custody.
Where one parent has a history of domestic violence or the parents simply have a volatile relationship, a legal custody arrangement may not be workable. Ultimately, your family’s unique circumstances will determine the type of arrangement most suited to your case.
Filing for visitation rights in New York is typically done as part of a divorce, custody, or paternity case. A typical New York minimum visitation schedule will give a noncustodial parent (parent without primary physical custody), a few hours one weeknight per week and overnight visits every other weekend. A judge may award a noncustodial parent more visitation, but not less. Your visitation schedule will also set forth each parent’s summer and holiday visits.
Both parents are entitled to regular and consistent visitation with their children. Even where one parent has a history of substance or domestic abuse, a judge usually won’t cut off a parent’s visitation rights entirely.
In situations where a judge is concerned about a child’s safety in the abusive parent’s care, a judge can order supervised visits. Supervised visitation may take place at an agency or under the supervision of a mutually agreed-upon third-party.
Whether parents reach their own divorce settlement agreements or argue about custody until trial, a judge won’t approve a custody agreement unless it serves the child’s best interests.
A judge must evaluate the family’s overall circumstances to determine what kind of custody arrangement best meets a child’s needs. Specifically, a judge may evaluate the following factors:
Notably, a parent’s gender is not relevant to a custody decision. If you’re a dad, you might wonder, “how can a father win custody in New York?” The answer will depend on your family’s unique circumstances and your child’s needs.
Either parent can “win” custody, regardless of gender, by showing the judge that he or she is the most suited to serving the child’s educational, social, physical, and emotional needs. A parent with a history of domestic violence, will have a major burden to overcome to obtain joint or full custody in New York.
In most cases, a judge won’t award custody to an abusive parent and in some cases, that parent may have limits put on his or her visitation rights in New York. See N.Y. Dom. Rel. L. § 240 (2020).
Custody orders last until a child turns 18, is emancipated, or the custody order is modified. A parent’s or a child’s circumstances might change over time. Either parent can file a request with the court to modify custody. However, a judge won’t consider a custody modification unless there’s been a material change in circumstances that substantially affects the child’s best interests.
A judge may schedule a court hearing to review evidence justifying the custody modification. Normal life happenings like the birth of a new baby or a parent’s remarriage won’t automatically justify a change in custody.
Instead, major changes such as a parent’s cancer diagnosis, an international relocation, or a child’s sudden failing grades might warrant a custody change. Ultimately, a child’s needs—not a parent’s circumstances—will determine if a custody modification is warranted.