Family Law

How do Judges Decide Child Custody in New York

By Amy Castillo, J.D., University of Minnesota School of Law
Learn about the different kinds of custody and visitation, and how New York judges decide custody cases.

Child Custody and Visitation in New York

If you’re going through a divorce or a breakup and you have kids, you may feel daunted by the size and complexity of New York’s Unified Court System. While it’s intimidating at first, you’ll feel a lot more comfortable navigating the system if you learn some basic family law principles.

What Is the Difference Between Legal and Physical Custody?

New York courts encourage parents to maintain meaningful relationships with their children after a divorce or separation. It also emphasizes that parents should work together to make important decisions for their children. There are different types of custody that the court will have to divide.

Physical custody refers to where a child lives, spends a lot of time, and receives basic daily care.

Legal custody is about giving a parent a voice in a child’s upbringing. A parent with legal custody will give input and help make decisions about important issues in the child’s life. For example, parents with legal custody are involved in the child’s education, extracurricular activities, religious and spiritual affairs, cultural activities, and medical care.

Sole custody means that one parent has full physical or legal custody. A parent with sole physical custody has the children most of the time and assumes primary responsibility for their daily care, while the other parent spends smaller amounts of visitation time with the kids. On the other hand, a parent who has sole legal custody has complete authority to manage a child’s educational, religious, spiritual, cultural, and medical needs. Awards of sole legal custody are rare and usually happen when one of the parents is abusive or neglectful or has a substance abuse problem.

Joint custody is shared, meaning that both parents have nearly equal rights and responsibilities in child-rearing. If a judge orders joint physical custody, the children typically spend an almost equal time at each parent’s residence, according to a set schedule. If a judge orders joint legal custody, both parents have an equal voice in making important decisions about the child’s life.

Based on this, the family courts are charged with preparing a final custody and visitation order that, to the extent possible, ensures that both parents are involved in the child’s life. The order is part of an overall “parenting plan,” which contains the exact terms of how custody and visitation will be shared, information about the child’s health, education, and development, and outlining each parent’s specific rights and responsibilities.

One of the most important things to know about joint custody is that the parents have to be willing and able to cooperate with each other and share information, or a judge will not award joint custody. If there’s an extensive history of serious arguments and problems, there won’t be a joint custody award.

What Is Visitation?

Generally speaking, visitation is a court-ordered, scheduled time when a non-custodial parent is able to be with the kids physically (for example, summer breaks or weekend visits) or, perhaps, call them on the phone or speak through real-time video call apps like Skype or FaceTime.

Both parents are governed by the visitation schedule the judge imposes, although the parent with sole physical custody can always agree to give the non-custodial parent more visitation time. If that happens, it’s wise to document the situation by asking the court to adjust the old schedule to match the new one.

Unless the parents request something different, the judge will usually divide up holidays on an alternating year-to-year basis to make sure that children are able to spend special holiday time with each parent.

If a parent who is entitled to visitation abuses drugs or alcohol, or has a history of abuse or neglect, the court will structure its custody and visitation order to make sure the kids are protected. The judge will often order visitation to be supervised by a family member or someone else who can make sure the child is safe. Supervised visitation usually occurs at a neutral place, like a restaurant or park.

It’s rare for the court to suspend visitation completely and that only happens in cases where visits would pose an immediate and major threat to the child.

Because New York strongly encourages both parents to be involved in the child’s life, you should never unilaterally try to prevent your ex from exercising court-ordered visitation. If you do, a judge may sanction (punish) you and you may even be charged with a crime. That said, if you believe your child would be in immediate danger by visiting with the other parent, contact a family attorney for advice and contact your Clerk of Court or local law library to find out what legal procedures you’ll have to set in motion to protect your child and shield yourself from sanctions. You may have to request emergency custody orders.

Can Parents Agree to Their Own Custody and Visitation Arrangements?

Generally, courts encourage parents to resolve their custody and visitation disputes on their own. In fact, it’s much better to reach a compromise on custody if you can. Once the courts are involved, your child’s fate will be decided by a judge who’s educated and dedicated to the law, but is still a stranger to you and your family. The judge doesn’t know you personally and you might be terribly dissatisfied with the decision. On the other hand, if you and your ex can reach an agreement, you can make your own choices and retain control over your life.

When you first initiate your custody case, you’ll have a choice: go straight to a judge or family law referee, or request a referral to child custody mediation. Unless you and your ex have a history fraught with violence and domestic abuse, you should try mediation to keep the case out of court. You and your ex will simply go to the office of a neutral, professional mediator, who can help you work through any outstanding issues. Everything is confidential. If you and your ex commit to the process, you can come up with your own, mutually agreeable parenting plan. Then all you have to do is appear before a judge and ask the court to approve it.

You should definitely consult with an experienced family law attorney if you’re anticipating custody or visitation problems, but if you’re going to handle the case yourself, be sure to read the materials and services offered by the New York City Bar Legal Referral Service and the New York State Unified Court System’s CourtHelp service.

How Do Judges Decide Custody Issues?

The main factor that drives the judge’s custody and visitation decision is the best interests of the child. Regardless of the parents’ opinion, the court will craft an order that has the best possible impact on the child. The judge will listen to testimony and consider evidence from both parents, and then apply that to the law to reach a final decision.

In most states, the law outlines a long list of factors the court has to evaluate to determine where a child’s best interests lie. That’s not the case in New York. In New York, the courts simply receive a broad mandate to act “in the best interest of the child.” This gives judges a lot of latitude and enables them to take a sweeping look at the facts and circumstances.

The case law which has developed over the decades shows what kinds of facts a judge will consider to determine a child’s best interests. Historically, the court has looked at the following kinds of evidence:

  • whether one parent would provide a more stable home than the other parent
  • whether one parent is more available to spend time with the child
  • if both parents work, whether one parent has significantly better child care arrangements
  • whether either parent has a history of substance abuse problems
  • whether one parent acted as the child’s primary caretaker before the breakup
  • whether a parent has a mental illness that’s untreated, a personality disorder, or is otherwise emotionally unstable
  • each parent’s physical health, and if there is a severe physical problem, whether it impairs the afflicted parent from caring for the child
  • whether there’s a history of domestic violence, abuse, neglect, or abandonment
  • whether either parent has interfered with the other parent’s visitation with the child;
  • the child’s preference, if the child is old enough to express a reasonable preference
  • whether each parent is financially stable and can provide stability for the child
  • whether each parent’s household is clean and safe or dangerous and unhealthy
  • whether one parent is able to provide the child with a substantially better education
  • the child’s relationship with siblings
  • whether one parent is more likely to encourage frequent and continuing contact with the other
  • the judge’s personal observations of the credibility and demeanor of the parents during official proceedings, and
  • any other facts that shed light on the child’s best interests.

The judge will write a detailed order with findings about each of the factors based on the evidence presented at trial. The court will, in its order, explain how each factor led to the judge’s conclusions and to the allocation of custody and visitation. If there’s a documented history of domestic violence, the court will write its order in a way that protects both parents and the child from harm.

Modification of Custody and Visitation

Even though the court will give you a “final” custody and visitation order, you may find that your circumstances later change in such a way that the original order no longer works for you and your children. If that happens, you’ll have to file a motion to modify, or change, the existing order. Unless it’s an emergency, the judge will normally make you wait a while between the issuance of the final order and filing a motion for a change of custody.

The parent who asks for a modification has to prove that there has been a change in circumstances since the final order was issued. The change has to be substantial. If that’s proven, the court will then decide whether modifying custody or visitation is in the child’s best interests.

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