HOW IS CUSTODY DEFINED IN NEW YORK STATE?

Sole legal custody gives one parent the right to make decisions regarding the child. New York Law favors one parent having sole custody, although most other states do not. The philosophy of New York Courts is that if the parties are not getting along, then one party must be in a position to make final decisions. The only way one can obtain joint legal custody is if one can show that the parties work well together and are of the same opinions in their decision making for the children.

Sole legal custody gives that parent the right to decide the child's medical treatment, religion, educational issues, extra curricular activities and the like. If one does not have joint legal custody but only rights of visitation, then under the law, that parent is not entitled to medical records or school records. Accordingly, it is crucial for the non-custodial parent to have the right to be provided with medical and educational records in either in a court decision or in a stipulation of settlement.

Residential custody is with whom the child primarily resides. This is important for child support which will be paid by the non-residential parent even if there is joint legal custody. The residential parent always has a "leg up" in disputes since that parent is with the child(ren) most of the time. That parent usually is better situated to make final decisions in the event of a dispute.

Visitation or access time may be anything agreed to by the parties. To the extent that there is a normal schedule, it is alternate weekends, one evening for dinner during the week, alternate holidays, alternate school vacations and two weeks in the summer. However, if the parties agree or if the judge orders, more expansive access may be provided to the non-custodial (non-residential) parent. For example, there is nothing precluding mid-week overnight access nor alternate weekend access from starting at either a Thursday evening and ending on a Monday or Tuesday evening. Specificity is important such as pick up and drop off times as well as location. It is also important to define starting and ending times of holidays. In particular, Thanksgiving may be the entire Thanksgiving weekend or only the day.

In the event of joint custody, parties may agree to have a "tie breaker" such as a professional, i.e. pediatrician for medical decisions, principal for school decisions, priest/minister/rabbi for religious decision. Normally, parties do not agree to such tie breakers where they believe it is better for the parents to make this decision. There also may be "spheres of influence" which divide up final decision making depending on the issue. For example, one parent may have final decision making on educational issues while the other parent has final decision making on medical issues.

If the parties cannot agree, then ultimately the court will make a decision on custody based on "the best interests of the child." This is a very broad standard that is fact sensitive. In order to assist the court in custody matters, an attorney for the children (law guardian) and/or forensic mental health professional may be appointed by the court. The cost of these professionals is normally shared by the parties on a pro rata basis.

At Rieger & Fried, LLP, we represent individuals in deteriorating and in some cases abusive marriages who need to move on with their lives. At Rieger & Fried, LLP, we are not just aggressive litigators, but offer our clients compassion and understanding in these trying times. If you have any questions that need answers about your particular situation, we invite you to call our office and schedule an appointment or consultation.