Child Custody and Visitation Laws in New York
New York child custody laws are primarily governed by the Domestic Relations Law (DRL) and the Family Court Act (FCA). Under DRL § 240, both parents have equal rights to custody of their children, and the court’s primary concern is the child’s best interests. This means the court will consider various factors when making custody decisions, such as the child’s safety, well-being, and stability.
Parents can come to a mutual agreement on child custody and visitation in New York through negotiation or mediation. This allows parents to create a customized parenting plan for their family’s unique needs. If parents agree on a custody arrangement, they can submit their agreement to the court for approval. Once approved, the agreement becomes a legally binding court order.
Parents who cannot reach a mutual agreement may have to resolve their child custody dispute through litigation. In this case, the court will hold a hearing, consider evidence and testimony from both parties, and make decisions based on what it deems to be the child’s best interests. The court may award sole custody to one parent or joint custody to both parents.
Visitation rights, or parenting time, refer to the non-custodial parent’s right to spend time with their child. The court will grant visitation rights to the non-custodial parent unless there are concerns about the child’s safety or well-being. The court may order a specific visitation schedule or allow the parents to create their own schedule.
In some cases, the court may order supervised visitation, which means that the non-custodial parent’s time with the child must be supervised by a third party. This may be necessary if there are concerns about the child’s safety, such as a history of abuse or substance abuse. Supervised visitation can occur at a designated facility or in the presence of a court-appointed supervisor.
Is New York a 50/50 Custody State?
New York is not a 50/50 custody state in that there is no presumption that parents will share equal parenting time. The court will decide custody based on the child’s best interests, considering factors such as each parent’s ability to care for the child, the child’s relationship with each parent, and the child’s needs.
While 50/50 custody arrangements are becoming more common in New York, they are not guaranteed. The court may award 50/50 custody if it determines that this arrangement is in the child’s best interests and that both parents can provide a stable, nurturing environment. However, the court may also award one parent primary custody and the other parent visitation rights if it believes this arrangement better serves the child’s needs.
It’s important to note that an equitable custody arrangement does not necessarily mean the child will spend exactly half their time with each parent. The court may order a schedule that includes alternating weeks, split weeks, or other arrangements that provide each parent significant parenting time.
The court’s goal is to create a custody arrangement that promotes the child’s best interests and allows them to maintain a meaningful relationship with both parents.
Types of Child Custody in New York
The term “custody” describes two different rights: legal custody and physical custody. The former is the right to make decisions about the child’s care and instruction. The latter is the right to physically care for and reside with the child. Each can be either joint or sole, meaning there are four general types of custody.
Joint Legal Custody
Joint legal custody means both parents can make important decisions about their child’s upbringing, such as education, healthcare, and religious practices. This type of custody encourages parents to work together and communicate effectively.
Sole Legal Custody
Only one parent has the right to make significant decisions for the child in sole legal custody arrangements. This may be appropriate in cases where one parent is deemed unfit, or there is a history of domestic violence or abuse.
Joint Physical Custody
Joint or shared physical custody means the child spends substantial time living with each parent. This arrangement works when parents live close to each other and can maintain a consistent schedule.
Sole Physical Custody
Sole physical custody means that the child primarily resides with one parent while the other may or may not have parental/visitation rights. The non-custodial parent may have a set visitation schedule or reasonable visitation as agreed upon by both parties.
How Do Courts In NY Decide Child Custody?
New York has jurisdiction in a custody case when it involves:
- A child who is less than six months old and has lived in New York for their entire life
- A child who has lived in New York for at least the past six months, and there is no existing custody order
- A child whose previous child custody order was decided in New York
- A child who is living in New York after an emergency in their home state
When determining child custody, New York courts prioritize the child’s best interests. Judges consider various factors, including:
- The child’s primary caregiver and the quality of each parent’s relationship with the child
- Each parent’s ability to provide a stable and nurturing home environment
- The child’s current living situation and the potential impact of any changes
- Each parent’s mental and physical health
- Any history of domestic violence, substance abuse, or child abuse
- The child’s relationship with siblings and extended family members
- Each parent’s work schedule and availability to care for the child
- The distance between the parents’ homes and the child’s school
- The child’s preferences, if they are of sufficient age and maturity
In cases involving drug abuse, domestic violence, or an unsafe home environment, the court may limit or deny custody or visitation to the parent it deems unsafe, in order to protect the child’s well-being. The court will also consider the parent’s work schedule and location, as this can impact their ability to provide consistent care and maintain stability for the child.
If the child has siblings, the court prefers to keep them together in the same household, as this is typically considered in the children’s best interests. The court will also consider where the child primarily lives and has established a routine, as maintaining continuity and minimizing disruption is essential for the child’s well-being.
Ultimately, the court will weigh all relevant factors and decide custody based on the totality of the circumstances, always keeping the child’s best interests at the center of its decision-making process.
The Child’s Preferences
New York family courts will often consider a child’s custody preferences, but they are not the sole determining factor. The court will give more weight to the child’s wishes as they grow older and demonstrate maturity and the ability to articulate their reasons for preferring one parent over the other.
However, the court may disregard the child’s preferences if they appear influenced by manipulation, bribery, or other external factors. For example, suppose a parent has been attempting to alienate the child from the other parent or making promises of gifts or special treatment in exchange for the child’s favor. The court may view the child’s preferences as less reliable.
In some cases, the court may appoint an Attorney for the Child (AFC) to represent their interests and advocate for their wishes. The AFC will meet with the child and assess their reasons for preferring one parent over the other. The AFC will then present the child’s preferences to the court, along with their recommendations, based on their interactions with the child and other relevant parties.
Frequently Asked Questions
How Can I Increase My Chances of Custody?
A court is more likely to award you joint or sole custody rights if you:
- Provide a safe living situation with adequate space for your children.
- Keep a stable job with a set schedule.
- Maintain an active presence in your child’s life, attend school events and extracurricular activities, and foster a strong bond with your child.
- Do not have ongoing problems with substance abuse.
- Are cooperative and communicative with the other parent, and avoid speaking negatively about them in front of your child.
Not only will these improve your chances for custody, but they will strengthen the relationship you share with your child.
Is The Mother More Likely To Receive Custody?
New York law does not favor one parent over the other based on gender. The court should make custody decisions based on the child’s best interests.
If Both Parents Share Custody, Does Anyone Pay Child Support?
Child support may still be ordered even in a joint custody arrangement. If custody is exactly 50/50, the court will calculate child support based on each parent’s income and the time the child spends with each parent. The parent with the higher income may be required to pay child support to ensure that the child’s needs are met in both households.
You will be deemed the primary custodial parent if you have more than 50% of the physical custody time with the child. According to New York’s Child Support Standards Act, the non-custodial parent will pay child support based on a formula made by the state.
When Can My Child Decide Which Parent to Live With?
In New York, there is no set age at which a child can decide which parent to live with. The court will consider the child’s preferences, but this is just one of many factors in determining custody. Children’s input may carry more weight as they mature, but the court will still decide based on their best interests.
Explaining Grandparent’s Rights to Child Custody
In New York, grandparents may seek custody rights if they have a substantial existing relationship with the child or if one or both parents have died. However, grandparents do not have an automatic right to custody. They must demonstrate that granting custody to the grandparent is in the child’s best interests and that the parents are unfit or unable to care for the child.
When Can a Child Custody Agreement Be Modified?
Child custody agreements can be modified when a significant change in circumstances affects the child’s best interests. Examples include:
- A parent’s relocation.
- Changes in the child’s needs.
- Parental unfitness due to substance abuse or domestic violence.
To modify a custody agreement, the parent seeking the change must file a petition with the court and provide evidence of the changed circumstances.
Working With A Child Custody Lawyer
Child custody issues are emotionally challenging. An experienced child custody lawyer can help you understand your rights, explore your options, create a custody plan, and advocate for your child’s best interests. A skilled New York attorney can guide you through negotiations, mediation, or litigation, depending on your specific situation.
At Aiello & DiFalco LLP, our knowledgeable family law attorneys are dedicated to helping clients resolve child custody matters in Nassau, Suffolk, and Westchester counties, as well as New York City. We can provide personalized attention and representation tailored to help you achieve the best outcome for your family.
Our attorneys have extensive experience handling a wide range of child custody cases, from amicable agreements to high-conflict disputes. We understand the emotional and financial toll that custody battles can take on families, and we strive to provide compassionate, effective representation to ease that burden.
If you are facing a child custody issue in New York, don’t hesitate to seek the guidance of an experienced family law attorney. Contact Aiello & DiFalco LLP today at 516.747.1131 to schedule a consultation and discuss your concerns. We are here to help you face this challenging time and work towards a resolution, prioritizing your child’s well-being and family’s future.
