THE BASICS
OF CUSTODY & VISITATION IN NEW YORK
Child Custody:
"Legal custody" is the
right of a parent to make decisions regarding the child’s health,
education, religion, and discipline, while "physical custody" defines
the parent which whom the child or children will reside. Custody is
determined by the court; when there is a separation agreement or
Stipulation of Settlement (the agreement negotiated between the parties
to a divorce) the private arrangements are generally approved.
Courts decide
custody by determining the "best interests" of the child and considering
(1) a parent’s fitness; (2) the relationship between parent and child;
and (3) influences on the child’s growth and development. A judge may
weigh the preference of a child based on age and maturity; prior to
twelve a child’s preferences have limited influence. Courts are very
reluctant to separate siblings in the absence of an overwhelming need.
New York prohibits determinations based on gender and men are
increasingly being granted custody. There are, basically, three types of
custody, but within each title there is little limit to how the
custodail arrangement will be structured:
Sole Custody
- An arrangement whereby only one parent has physical and legal custody
of a child and the other parent (generally) has rights to visit with the
child.
Joint Custody - With Joint Custody while one parent will still be the
physical custodian of the child both parents will enjoy a shared role in
the making of decisions to be made on substantial questions relating to
educational issues, religious matters, medical options and other
significant issues which may present themselves in a child's life. The
Merely titling a custodial arrangement as 'joint custody' will do little
to foster the spirit of true joint custody, which bebefits both parent
and child alike, if both parents fail to exert their best efforts to
work cooperatively
Shared Custody -
Defined in
section 9 of the Federal Child Support Guidelines as a situation where
each spouse “exercises a right of access to, or has physical custody of,
a child [of the marriage] for not less than 40 per cent of the time over
the course of a year.” shared custody is actually a variant of joint
custody in which each parent has periods of physical custody of the
child generally intended to divide the time as close to equally as is
practical. To give this relationship its best chance of success (and to
be fair to the child) the parties generally need to live in close
proximity to each other so the child is always close to school and
friends.
Although sole
custody is favored in New York, joint custody is appropriate when the
parties state they can cooperate on issues relating to the children.
Unfortunately, in order to reduce legal costs and speed the process,
couples often agree to joint custody while truly being unable to parent
together, thus making for future problems.
Visitation: Visitation is viewed as part of the joint right of the child
and non-custodial parent to an ongoing relationship. The love and
guidance of the non-custodial parent is highly valued and promoted by
the court in the absence of any factors which would be harmful to the
child.
Relocation (with the
children): The Courts use a "best interests of the child" standard to
decide whether a parent will be able to re-locate away from the
geographic area where the non-custodial parent resides. To determine the
"best interests of the child," the courts utilize the approach
adopted by the New York Court of Appeals in Tropea v. Tropea,
87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). The court will
consider:
Each parent's reasons for
seeking or opposing the move.
The quality of the relationships between the child and the custodial
and non-custodial parents.
The impact of the move on the quantity and quality of the child's
future contact with the non-custodial parent.
The degree to which the custodial parent's and child's life may be
enhanced economically, emotionally and educationally by the move.
The feasibility of preserving the relationship between the
non-custodial parent and child through suitable visitation
arrangements, and
The negative impact, if any, from continued or exacerbated hostility
between the custodial and non-custodial parents, and the effect that
the move may have on any extended family relationships.
