Types of Custody in a New York
Divorce
The question of "Who gets
custody of the kids?" is one of the most difficult decisions
for parents and their children, when parents separate. Custody and
visitation are the legal terms for court decisions about how the
child will spend his/her time between parents (or others). Custody
and visitation are never considered to be final. As situations
change, parents can come back to court to request changes.
In New York, the law does not favor
either the mother or father. The law looks at the relationship of
each parent with the child. While grandparents and others may seek
custody, there is a "presumption" in favor of the
natural parents. This means that the court is more likely to favor
the natural parents.
This section is designed to give
you general information on how courts decide custody and
visitation rights in New York.
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Types
of Custody: What does the word
"custody" mean?
Temporary Custody -
"De facto" (means
"in fact") custody refers to who actually has custody of
the child at this time. This can be different from "court
ordered custody". In order to formalize custody before you
begin litigation, you will need to file for temporary custody.
Temporary custody will be based on the "best
interests" of the child standard. It is not an
"initial" award of custody. Instead it is temporary
custody while you wait for the court to hold a hearing.
Sole Custody -
Custody is made up of: legal
custody and physical custody. A person with legal custody has the
right to make long range plans and decisions for the education,
religious training, discipline, non-emergency medical care and other
matters of major significance concerning the child's welfare. A
person with physical custody has the child living primarily with
them and they have the right to make decisions as to the child's
everyday needs. Sole Custody is when both legal and physical custody
are given to one parent. The child has only one primary residence.
Split Custody
- Split custody is easiest to
describe in a situation where there are two children and each parent
obtains full physical custody over one child. Some of the
considerations that may bring about this result are age of the
children and child preference.
Joint Custody
- Joint Custody is actually
broken down into three categories: Joint Legal, Shared Physical, and
Combination.
- Joint Legal custody is
where the parents share care and control of the upbringing of
the child, but the child has only one primary residence.
- In Shared Physical
Custody the child has two residences, spending at least 35%
of their time with the other parent.
- Additionally, you can make
your own special joint custody agreement that is any combination
of Shared Physical and Joint Legal Custody. One example of
this is when there is one residence for the child and the
parents live with the child there on a rotating basis.
The court looks very closely at Joint
Custody agreements. The most important factor to Joint Legal Custody
to Shared Physical Custody is the ability of the parents to talk
about and reach joint decisions that affect the child's welfare. If
you are constantly fighting over what religion or what school, the
court may strike down your agreement.
Other factors include:
- willingness to share custody;
- fitness;
- child's relationships with
parents;
- child's preference;
- ability to stabilize child's
school and social life;
- closeness to parent's homes
(primarily a factor during the school year) ;
- employment considerations (e.g.
long hours, extensive travel, etc.);
- age and number of children;
- financial status;
- benefit to parent.
Additionally, the sincerity of the
parties involved is important. The court will want to make sure that
joint custody isn't being traded for concessions on other points.
Another consideration is whether the grant of joint custody will
affect any assistance programs. Currently, Welfare and Medical
Assistance are affected based on the award of Joint Legal Custody.
Be sure to check with your contact at any social service agencies
before entering into an agreement or you may be jeopardizing your
benefits. This list is not meant to be complete and the court will
hear anything that they believe to be relevant.
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