Basic New York Child Custody Laws

New York Child Custody cases are bitterly fought but the procedures are not fully understood by the parents. Moms don’t automatically win and Dads don’t automatically lose. There are legal rights for Dads equal with legal rights for Moms. You need to know the facts before starting a fight for your child. Divorce and Child Custody lawyers need to prepare you before you take the plunge. 

Custodial vs Non-Custodial Parent

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

In New York Child Custody 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.

In similar fashion, regardless of how a parent is styled and 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 their child playing soccer or baseball, the parent with residential custody will win. However, that does not mean that such parent can create unreasonable financial burdens for the other parent. For example, the residential parent cannot enroll the child for 4 sports and 3 instruments and expect the other parent to pay for it.

It is also important to remember that, regardless of whether one parent has sole custody, the 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 informing the Non-Custodial parent. This is wrong. This is viewed as a major decision and a court can order that no move occur. New York Divorce or Family Courts will even order custodial parents to return to New York if the move was made without permission from the court or consent from the Non-Custodial Parent.

This issue similarly arises as well in regards to 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. Parental Visitation or 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. Failing to pay child support cannot be used as a reason to stop visitation.

Residential Custody

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

People mistakenly 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 where mother will always win child custody. The test now used by the court is based upon “the best interests of the child”. Often, the parent who is the primary care-giver will be given custody of the child.

Generally, the non-working spouse is viewed as the primary care-giver. However, this does not mean that the non-working spouse will always get child custody. If that parent is seen as unfit, the court will not award custody of the child to that parent.

Fitness or Unfitness relates to the health, safety, and well-being of the child. The custodial parent having a boyfriend, girlfriend, or partner is not being unfit. It is not unfit if the custodial parent is living with their boyfriend, girlfriend, or partner. Despite some misconception around it, committing adultery is also not viewed as being unfit. 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 is it to consider the totality of the circumstances.

For example, a mother can get child custody, even if she is committing adultery, if she is a good mother in all other respects. It is unlikely she will get custody if she brings strangers home every night or engages in wild drunken parties. A parent who abuses drugs or alcohol could be found to be unfit. Similarly, a parent with serious emotional or psychological problems could also be found to be unfit.

A parent who neglects the child will also not get custody. The term “neglect” has a specific meaning with regards to child custody cases. A child who is not fed, washed, or properly clothed is viewed as neglected. Physical abuse is also considered a form of neglect.

In most child custody cases both parents are usually 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 be granted to the non-working spouse. It is merely my own personal observation from practice. When both parents work, it is more difficult to determine who will get the child if there is a custody battle.

Costs Involved

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. Often times, 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 may also appoint a psychologist to examine the parties and the child (or children.) The fees for these court-appointed services are generally between six to eight thousand dollars. Again, this will have to be paid for by the parties.

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, let alone friendly.

In the posts, there are several articles covering more specific topics in the area of child custody law. https://nydivorcefacts.com/category/child-custody/