Custody and Parenting Time

Child Custody in New York

By J. Douglas Barics
Suffolk and Nassau Divorce Attorney

Custody of children is determined by a best interests standard. There is no single definition as to what constitutes best interests, other than no single factor can control and the courts must look to the totality of the circumstances.

How Custody is Determined in New York

Over the years the Courts have considered various factors which have worked their way into case law. These factors include:

• Which parent is the primary caregiver
• Which parent is more available for the child
• Which parent is better suited to the emotional and intellectual development of the child
• Which parent is more likely to foster the child's relationship with the other parent
• Separation of siblings
• History of obeying or disobeying court orders
• Prior informal custody agreements
• Existing custody agreements
• Home environment
• Preferences of the child

These are only some of the factors considered.

Residential Custody

Residential custody is defined as where the child resides. A parent who is awarded residential custody will determine the child's residential address.

Legal Custody

Legal custody refers to the right to make decisions involving the child. Decisions generally cover significant matters such as religion, health and education. Day to day decisions are generally made by the parent with whom the child is with when the decision is made. Emergency decisions are also made by the parent with the child at the time of the emergency, but notification of the other parent is usually required. In general there are three broad ways decision making can be allocated between the parents

Sole Custody

Sole custody gives one parent alone the right to make all major decisions involving the children. Sole custody orders can require input from the non custodial parent, or they can be made without any requirement to consult the non custodial parent.

Joint Custody

Joint Custody gives both parents equal rights in making decisions. By definition, joint custody requires mutual decision making, as if a joint decision cannot be made both parents have an absolute veto over the other parent.

Spheres of Influence

A custodial arrangement using the spheres of influence approach gives each parent sole custody over specific areas of decisions. One parent may be solely vested the right to make educational decisions while the other parent has the sole right to make religious decisions.

Interstate Custody

When the parents reside in different states, the first question that must be addressed is which state has jurisdiction to determine custody. The answer is based on whether or not there is an existing order of custody or not.

Jurisdiction When There is No Order of Custody

When there is no existing order of custody, the state where the child has resided for the past six months will have the power to determine custody. This rule is not absolute and there are statutory exceptions, such as if the state is an inconvenient forum to determine custody, or if the six month residency was established through the misconduct of one of the parents.

Jurisdiction When There is an Existing Order of Custody

When a custody order exists, the six month rule does not apply. Instead, the state which issued the custody order retains sole jurisdiction to determine all future issues of custody for as long as either the child lives in that state or either parent lives in that state. This authority is not absolute, and it can be released upon a request, but absent such a request, no other state has authority to issue a custody order.

Relocation

When one parent wishes to relocate, the legal standard established by the 1996 case of Tropea v Tropea is to show the relocation is in the best interests of the child. In general, obtaining a relocation order is difficult but not impossible. The focus on relocation is the child's interests. Parental access time of the non relocating parent is often a critical factor. Distance involved, and the new proposed parental access schedule in contrast to the existing parental times will almost always play a significant role.

Custody and Child Support

Custody and parental access schedules alone will not directly affect child support. While some states have adopted a child support formula that takes into account the amount of time each parent spends with the child, New York has rejected that approach. However there are times when custody orders can affect child support.

• When siblings are split and each parent has some of the children, each parent gets a full child support order from the other parent based on the number of children in each parent's care.
• When there is truly share custody with each parent having 50% of the time, an offset to child support may be ordered, provided it is determined as a deviation to child support. The mandatory child support calculations cannot be bypassed.

Call for a Free Phone Consultation or to Schedule a Low Cost Office Consultation

If you have have additional questions, contact our office to learn about your legal options for protecting your rights in any child custody or parental time case. To get your free phone consultation or to make an appointment, call (631) 864-2600. Serving clients in Suffolk, Nassau, Queens, Manhattan, Bronx, Westchester. Rockland, Orange and other surrounding counties are accepted on a case by case basis.