Parental Custody 101- Custodial and Non Custodial Parents in New York

Basic Child Custody Issues About Custodial Parents

Child Custody cases are bitterly fought but least understand by the parents. You need to know the facts before stating a fight for your child.

First, we need to define our terms. “Custodial Parent” and “Non Custodial Parent” do no mean what people think they do.  People tend confuse these terms with “Residential Custody.” This term refers to where the child normally lives. A person can be a Custodial Parent but not have their child living with them.

In modern Family Law, there is really little difference between the Custodial and Non Custodial parent. Most courts will award Joint Custody, but even that has little real meaning.

Regardless of how a parent is styled, absent an order of a court restricting access, both parents will have access to school records, teachers, medical report and doctors.

Regardless of how a parent is styled, and again absent an order of  a court, the parent with whom the child is living will have final say over day to day decisions. So, if the parents disagree about soccer v. baseball, the parent with residential custody will win. However, that does not mean that such parent can create unreasonably financial burdens for the other parent. For example, the residential parent can’t sign up the child for 4 sports and 3 instruments and expect the other parent to pay for it.

Regardless of whether one parent has sole custody, that Custodial Parent cannot make major decisions without consultation and agreement from the Non-Custodial Parent.

For example, many custodial parents believe that they can move to another state without even telling the Non Custodial parent. This is wrong. This is a major decision and a court can order that no move can occur. Courts will even order custodial parents to return to New York if the move was made with permission from the court or consent from the Non Custodial Parent.

Another example would be a change of religion. A Custodial Parent cannot change the child’s religion without consent of the other parent or a court order.

Another popular misconception is that a Custodial Parent can restrict or deny access of the child to the Non Custodial Parent. Parenting time with the child is governed by either a formal, written agreement, notarized by the parties or by an order of the court. Neither party can deny access or restrict visitation on their own. Any restriction must be ordered by the court.

Since when people talk about custody they really refer to “Residential Custody” I will address that issue next.

People mistaken believe that the mother always wins in a residential custody battle over the children. This is no longer the case. The courts no longer apply the old rule that the mother will always win child custody. The test used is based upon the best interests of the child. Often, the parent who is the primary care-giver will get custody of the child. Generally, the non-working spouse is the primary care-giver.

This does not mean that the non-working spouse will always get child custody. If that parent is unfit the court will not award custody of the child to that parent.

Fitness refers to the health and safety of the child. Having a boy/girl friend is not being unfit. It is not unfit if the custodial parent is living with their boy/girl friend. Committing adultery is  also not being unfit. Unfitness relates to the safety and will being of the child.

The issue of fitness for  custody may not always take into account moral fitness. In some custody decisions courts have stated that morality or immorality is not as important as considering the total circumstances.

For example, a mother will get child custody even if she is committing adultery if she is a good mother in all other respects. She won’t get custody if she brings strangers home every night or engages in wild drunken parties. A parent who is a drug or alcohol abuser could be found unfit. A parent with serious emotional or psychological problems could be found unfit.

A parent who neglects the child will also not get custody. The term “neglect” in a child custody case has a specific meaning. A child who is not fed, washed or properly clothed is neglected. Physical abuse is also considered a form of neglect for a custody proceeding.

In most child custody cases both parents are fit. Generally the primary caregiver will get custody. A non-working spouse is generally the primary caregiver.

There is no law or rule that child custody will go to the non-working spouse. It is merely my own personal observation.

When both parents work, it is less easy to determine who will get the child if there is a custody battle.

Be warned: fighting for custody is expensive. I repeat, a custody battle can be  expensive.

It is not unusual for the legal bills in a custody case to exceed many thousands of dollars. Also,the children do suffer in a bruising custody battle. Before launching a custody case, consider the affect on the child.

When there is a custody battle, the court will appoint a lawyer for the child. This lawyer is known as the law guardian. Typically, the parties will share in paying the law guardian’s legal fees. The court will also appoint a psychologist to examine the parties and the child (or children.) The fees for this serve are generally between six to eight thousand dollars. Again, the parties will have to pay for this.

Finally, there is the trial. A child custody trial is emotionally brutal. When this line is crossed, there is little chance that the parties will be civil to each other again, let alone friendly.

In the posts, there are several articles covering more specific topics in the are of child custody law.