Custody and Visitation

When parents divorce, and when unmarried parents decide to go their separate ways, court intervention may be needed to make a determination regarding the custody of any children from the relationship. When the court makes a determination regarding custody, the court is required to make a determination based on the "best interests of the child".

In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns. When one parent is awarded sole physical custody, the other parent is granted visitation, either according to a clear schedule of dates and times, or simply on a "reasonable" basis. If allegations of abuse have been raised against the non-custodial parent, any visitation granted may be subject to supervision by a neutral third party. Grandparents may also be entitled to visitation privileges.

Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.

Another option is split custody, in which one parent has custody of one or more of the parties' children and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.

In deciding who will have custody, the courts consider various factors. The overriding consideration is always the child's best interests, although that can be hard to determine. Often, the main factor is which parent has been the child's primary caretaker. If the children are old enough, the courts will take their preference into account in making a custody decision. Once entered, a custody award can be changed by the court if the parent's or children's circumstances have changed.

Some commentators have criticized the courts as being gender-biased, since most custody awards are in the mother's favor. Others respond to this criticism, however, with the fact that historically mothers have been, and in many cases continue to be, the children's primary caregiver, so the higher number of awards to mothers is appropriate. As more fathers become more actively involved in their children's care, there likely will be more custody awards to fathers.  The law in New York is gender neutral and there is no preference in the law as to either parent.

Legal Custody
Legal custody of a child is the right and obligation to make decisions about a child's upbringing. Decisions regarding schooling, and medical and dental care, for example, are made by a parent with legal custody. When the parties have joint legal custody, the parties share the decisions about issues relative to the health education and welfare of the child.

Physical Custody
Physical custody is the right of a parent to have a child live with them. Usually one parent will have physical custody and the parties will share some form of legal custody. In some instances, the parties will share both physical and legal custody, with a schedule for the child to live at both parents' home for part of the time. If one party has physical custody, however, a parenting schedule, or visitation, is set for the non custodial parent.

Joint Custody
Parents who don't live together have joint custody (also called shared custody) when they agree, or a court orders them, to share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, no longer cohabiting or even if they never lived together. Joint custody may be joint legal custody, joint physical custody (where the children spend a significant portion of time with each parent) or both. It is common for couples who share physical custody to also share legal custody. Usually, when parents share joint custody, they work out joint physical custody according to their schedules and housing arrangements. If the parents cannot agree, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house. Other joint physical custody arrangements include alternating years or six-month periods, or spending weekends and holidays with one parent while spending weekdays with the other.

Sole Custody
Sole custody means that only the custodial parent has physical custody and legal custody of a child, and that the non-custodial parent has visitation rights. Over recent years the Courts and they are giving both parents at a minimum access to information regarding the health, education and welfare of the child, and in many instances a partial voice if not an equal right to participate in such decisions. Sole custody is used more often in cases where a parent is unfit or there is a history of domestic violence between the parties making it necessary to protect the custodial parent from continued dominion and control by the other party.

If you are interested in an application for custody, or if you have received a summons to appear in court, you should immediately consult with experienced family law and divorce lawyers to ascertain your obligations and protect your rights. The family law and divorce attorneys at the Law Offices of Paul A. Boronow, PC are fully versed in matrimonial and family law, have matrimonial and family law actions pending across Long Island in Nassau County, Suffolk County and Queens County, and are available to assist you in protecting your rights.

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