Child Custody in New York State
If you have children and are considering a Separation or Divorce, one of the most important decisions you will have to make is how your children will be raised and cared for. This is a difficult issue in an intact marriage. When parents are going through the emotional trauma of marital dissolution, this issue can become explosive.
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The process of resolving a parenting arrangement with your spouse is complicated by the host of issues you must consider. Custody does not only determine where the children will live (physical Custody). Custody also resolves who will have the right to make important decisions for the children (legal Custody), and when the children will spend time with the parent who does not have physical Custody (“visitation” or “parenting time“). In every case, the goal is to obtain a complete Custody arrangement that meets the individual needs of your children and addresses the unique circumstances of your family.
Before you begin settlement discussions with your spouse, or go into a Courtroom to resolve Custody and visitation, there are basic terms you should be familiar with. If you understand these terms, you will know what the attorneys and Judge are discussing, and you can participate fully in the process of determining the Custody issues in your case.
Legal and Physical Custody
Custody is comprised of two separate and distinct components. Separating or divorcing parents must determine how important decisions will be made for their children when the parents live in two different households. In intact families, issues such as what school the children will go to or what doctor will treat the children are either made by one parent or by both parents together. During or after a Separation or Divorce, one or both parents will make those decisions. How that happens depends on who has Legal Custody. Legal Custody is the right to make important, legal decisions for your children. It can be granted to just one parent (Sole Legal Custody“) or both (Joint Legal Custody).
Joint Legal Custody does not work for all families, even those where the parents previously shared decision making for their children. To determine if joint legal Custody can work for you, you must decide whether you and your spouse will be able to agree on the major decisions pertaining to your children. If you and your spouse are so estranged that you are unable to rationally and calmly communicate, joint legal Custody will not work.
There are a number of practical issues to be considered when addressing the issue of joint legal Custody. The term joint legal Custody is very important to many parents. Even when the parties are not able to get along, parents will often insist upon a joint legal Custody arrangement. The majority of Custody cases are negotiated in an agreement. The current trend in negotiated agreements is to accommodate the parents and state that the parties will have joint legal Custody.
The second form of Custody, Physical Custody, addresses where the children will live. Physical Custody is only an issue if the parents have Joint Legal Custody. If one parent has legal or sole Custody, the children will live with that parent. The majority of cases result in an agreement that the parties will have Joint Custody. When that occurs, they must also agree upon the issue of Physical Custody.
Your children’s living arrangements, or Physical Custody, can be structured based upon the unique circumstances of your family. You can share physical Custody equally, with each parent having the children 50% of the time, which is also called Joint Shared Legal and Physical Custody, or the children can live mostly in one parent’s home. That parent would be the primary physical custodian”. The more common arrangement is to have one primary physical custodian.
If one parent will have Primary Physical Custody, you must agree upon a schedule of time when the children will see their other parent. The time they will spend with that parent is commonly called visitation or parenting time”. Other terms that are used include access time and custodial access. Many parents object to the term visitation”. They are divorcing their spouse, not their children, and they do not want to be relegated to the role of a mere visitor. It is very rare for an attorney or Judge to refuse to accommodate a request for the use of language other than the word “visitation” in an agreement or Order.
Visitation and Parenting Time
Parents without primary physical Custody, or parents whose spouse has sole Custody, have visitation or parenting time with their children. That is simply the time when the parent who does not have physical or sole Custody of the children has the right to access to the children. There is no such thing as a typical access schedule. The frequency, duration and type of access vary from family to family. It can be dictated by unique work schedules, school arrangements, or the convenience of both parties.
In creating an access schedule, you should consider how rigid or flexible it should be. It is important that the schedule not depend on whether the children want to see the other parent. By putting control in the children’s hands, you can cause a tremendous amount of conflict, which often results in accusations that the parent who is denied access has been alienated from the children. There is no magic age in New York when a child can decide whether to visit with the other parent. A child who does not see both of their parents regularly is a child who has been denied a full and complete upbringing. The result can be psychological scars that last for years.
Whether a schedule should be flexible or rigid, or somewhere in between depends on the age, schedule and needs of the children, and the schedules of the parents, and their ability to communicate. A rigid schedule can set exact days and times of access, specific time periods for vacations, holidays, birthdays and other special occasions, provide for make-up time for missed days, and provide for penalties for the failure to be timely or to provide advance notice for missed days. On the other end of the spectrum is a situation where the parents communicate so well they can agree that the non-custodial parent will have visitation, “as the parties can mutually agree.” That type of arrangement should, however, be reserved for situations where parents truly can work together and want to do so. If no access schedule is set, and the parties cannot agree, one of the parents can ask a Court to set a schedule.
Some families are comfortable with what is called an alternate weekend schedule where the children will spend every other weekend with the non-custodial parent. Other families prefer more frequent and regular access that includes overnight visits and/or other time during the workweek, in addition to blocks of time on weekends. Some families divide holidays and vacations. Other families alternate those days. Some families identify only a few holidays and special days to share. Other families identify so many that the regular schedule is altered on a persistent basis to accommodate a holiday or vacation.
There is no right or wrong way to set these schedules. Each family is different and all children have different needs. Some children cannot tolerate daily moves between their parents’ homes. Others like having two houses to call their own. Some of these issues are dictated by age, some are dictated by school and/or social performance and behavior, and some are dictated by the personalities of the children and parents involved. Other issues, such as holidays, can be dictated by the customs and schedules of extended family members.
No matter how frequent the access schedule, you should consider how you will divide important days, such as holidays, birthdays and vacations. To enable each parent to take the children out of town on vacations, many parties like to include in the access schedule a provision that, during the year, each will be entitled to take the children for one or more uninterrupted blocks of time. If such a provision is agreed upon, it should also include a notice requirement. For example, if one or both of the parents will be taking a one or two week summer vacation, the notice requirement can provide that the days selected haveto be provided to the other parent thirty or sixty or ninety days in advance. The notice provision can also provide for a resolution if both parents select the same dates or a provision that vacations not fall on certain dates. Parents who do not communicate well will need a fair degree of specificity in this schedule to ensure that it works well. Invariably, if an agreement or Order is not clear on these issues, the intervention of a Court will be needed. The time and cost involved in going back to Court should be enough incentive to work thorough these issues and continue to cooperate with the other parent on Custody and visitation schedules.