CHILD CUSTODY
Child custody involves where and with whom the children under 18 years old will live and who will have responsibility for making legal decisions regarding them. Court decisions regarding custody remain in effect until the child reaches the age of 18.
Legal Custody
Whoever has "legal custody" has the right to make important decisions about a child's care such as medical care or religious upbringing. If the Judge gives joint legal custody, the parents make major decisions about the child together. It doesn't matter which parent the child lives with; both parents must agree on the decisions together. If the Judge gives one parent sole legal custody, only one parent has the right to make major decisions for the child.
In New York, an arrangement for joint custody has to be agreed upon by the parties. The court cannot force a party to accept a joint custody plan. Therefore, if one party wants sole custody and the other party wants joint custody, there must be an agreement for a joint custody arrangement.
Physical Custody
Whoever has "physical custody," also known as residential custody, is responsible for the actual physical care and supervision of a child. If the Judge gives joint physical custody, the child lives with each parent for an equal amount of time. If the Judge gives sole physical custody, the child lives with this adult more than 50% of the time and this person is the custodial party and the noncustodial party will have visitation.
Best Interests of the Child
The court awards custody and visitation based on what is best for the child. The judge will look at many factors to figure out what would be in the best interest of the child, such as:
(1) Which parent has been the main care giver/nurturer of the child;
(2) The parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child's special needs, if any;
(3) The mental and physical health of the parents;
(4) Whether there has been domestic violence in the family;
(5) Work schedules and child care plans of each parent;
(6) The child's relationships with brothers, sisters, and members of the rest of the family;
(7) What the child wants, depending on the age of the child;
(8) Each parent's ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so.
An attorney can help protect your parental rights. They can help to negotiate a custody agreement that achieves the results you want. Or they can petition a court to order or enforce the terms sought.