The Basics of Child Custody in New York

September 16, 2020

By Jill K. Sanders, Esq.

When a couple splits up, one of the primary concerns of the parties is what happens to the kids. Who gets custody and what the terms of custody are concerns for parents no longer in a relationship or getting divorced. When it comes to child custody, the laws are complex. In this blog, we discuss some of the basics when is comes to custody disputes in New York.


Types of Custody

Broadly speaking, there are two types of custody – legal and physical. Legal custody refers to decision-making authority over the child and for the child. This includes matters on schooling, medical issues, and religion. Joint legal custody means the parents have to consult with each other when making important decisions. Sole legal custody means one of the parents has all the decision-making authority. Sometimes, parents will split up responsibility – mom may decide medical concerns, while dad may handle all school decisions.

Physical custody refers to the amount of time the child spends with each parent. Joint physical custody means the child splits his/her time evenly with each parent. If one parent has more than 50% of the time with the child, that parent becomes the primary caretaker for the child. Sole physical custody means the child is with one parent all of the time; there may be visitation with the other parent in this situation.


Persons Who Can Petition for Child Custody

Biological and legal parents can petition for child custody. However, any other person with a substantial relationship with the child can petition for the custody as well. This includes grandparents, siblings, and other family members. When the decides custody between a parent and someone who is not a parent, a judge will consider if there are extraordinary circumstances to grant custody to the non-parent. Note there are also situations where family members, such as grandparents and siblings, can apply for visitation.


How is Child Custody Decided?

Custody can be decided between the parties in a written agreement. This is then reviewed by a judge and if the judge signs off on the agreement it becomes binding. Where the parties cannot decide, the judge will then make a decision after a trial.

The judge will determine what is in the best interests of the child. The parents will each have their own attorneys, and the child will be assigned an attorney who will advocate on the child’s behalf. When considering custody, the judge will consider many factors, such as employment, living arrangements, lifestyle, and relationship with the child.

Note that custody (and visitation) can be changed when there is a significant change of circumstances that affect the child. It’s also worth highlighting that the judge may or may not consider the wishes of the child. The older a child is, the more likely the judge will consider his/her wishes.


Contact Us for Representation

Contact us today if you’re facing a child custody dispute or divorce. The lawyers at Pappalardo & Pappalardo, LLP will work with attorneys John Guttridge and Jo-ann Cambareri to provide you the answers to all your matrimonial and family law questions.