There are two aspects of custody: legal custody and physical custody. Legal custody gives the parent the right to make important decisions concerning the child, such as education, medical care, and religious training. The parent with physical custody, also known as the custodial parent, has the right to live with the child.
One person may have both legal and physical custody. Another option is that the parties share legal custody, but only one has physical custody. Still another option is that the parties share both legal and physical custody; however, this option is seldom used by the court. The court will usually decide that it is in the best interest of the child to reside with only one of the parents. If there is more than one child, the court will usually avoid separating the children.
If the parents agree about custody and visitation, the court will usually approve of the agreed terms. However, as stated above, the court may not allow joint physical custody if the court determines that such an arrangement would not be in the best interest of the child.
If both parents want custody, the court will appoint a law guardian to represent the child. The law guardian will conduct an investigation, including having experts interview all of the parties. Once the investigation is completed, the law guardian will issue a report and provide recommendations to the court concerning custody and visitation.
When a judge is considering who should get custody, the judge must determine the best interest of the child. Among the many factors that the judge may consider in this regard are the following:
- With which parent the child is currently living;
- Which parent can provide the most stable home environment;
- History of physical, mental and drug abuse by the parents;
- Current physical and mental health of the parents; and
- With which parent the child wishes to live (if the child is old enough to have and express an opinion).
When there is a child of a marriage and the couple is still married but living apart, it is essential that the custodial parent obtain a court order granting custody of the child. Without such an order, the other parent may take the child and leave the state or country. An order granting custody of the child is of great assistance in getting the child back should the non-custodial parent remove the child from New York. Once the child has been out of New York for six months, New York usually will not consider custody or visitation issues. In such a situation, the matter must be brought in the state or country in which the child resides.
In New York, both the Family Court and the Supreme Court, which is the court of general jurisdiction, have jurisdiction regarding issues of custody. If the parents of the child are not married, they go to Family Court for a determination of custody and or visitation. If the parties are married, these issues are usually decided by the Supreme Court in a divorce action. After divorce, a party who wishes a change of custody or visitation usually brings the matter to Family Court.
With regard to visitation, the parent who does not have physical custody has the following options:
- Reasonable visitation rights; and
- Specified visitation rights, which, for example, may be limited to every other weekend for the entire weekend and specified holidays or Saturdays or Sundays every week plus specific holidays.
Almost always, the court will take the position that it is in the best interest of the child to have contact with the non-custodial parent. If the court determines that such contact poses issues regarding the child’s safety, the court may grant visitation on the condition that it is supervised.
If the court grants an order of visitation, the custodial parent may not keep the non-custodial parent from visiting the child, even if the non-custodial parent has failed to pay child support. The issues of visitation and child support are separate. In New York, rights of visitation are limited to the child’s parents and grandparents.
If you need an attorney in regard to custody or visitation call us at (718) 625-0800 to schedule a consultation. For Family Court matters we charge $200 for a consultation. The $200 may be applied to our fee in the event you retain our office to represent you.