One of the more complicated and contested parts of the divorce process is often child custody. They must split their time spent with the child since the parents are no longer living together.
New York law has no set rule for dividing, so easy to see how difficult it can be to determine child custody rights among parents. Instead, the court will follow the overarching principle of doing what’s in the child’s best interest.
Types of Child Custody
There are two primary types of child custody in New York: physical custody and legal custody. Physical, or residential custody refers to where a child lives. Legal custody refers to a parent’s right to make important decisions about the child’s life. The three major types of decisions that usually fall under legal custody include the child’s health, religious upbringing, and schooling.
Both physical and legal custody can be “sole” or “joint.” Sole legal custody means only one parent can make the major decisions about a child, and joint legal custody means both parents have equal say in making major decisions about the child’s upbringing. Similarly, sole physical custody means the child will spend all or a large majority of the time with one parent (the custodial parent) while the non-custodial parent has visitation rights. Joint physical custody means the child will spend an equal amount of time (or as close to 50/50 as possible) living with each parent.
How the Court Makes Child Custody Decisions
While both parents have legitimate interests in a child custody battle, these come after the child’s interests. What constitutes “best interests” will depend on the particulars of each case. Courts will consider:
- The wishes of the child (the amount of weight the court will give to the child’s wishes will depend on the child’s age).
- Which parent has served as the primary nurturer for the child.
- The parenting ability of each parent.
- Any history of child or domestic abuse.
- Any history of substance abuse.
- How well the parents get along with each other.
- The physical and mental health of each parent.
- Each parent’s work schedule.
The court will not consider the following factors in determining child custody:
- The parents’ religion.
- The parents’ race.
- Sexual orientation of the parents.
- Sexual behavior of the parents, including situations where adultery served as the grounds for the divorce.
But if any of the above parental factors will adversely affect the child’s best interest, then the court may consider it.
The court doesn’t always have to get involved in custody decisions.
If there isn’t any need for a judge to determine property division, spousal support, and child support because of an uncontested divorce, a court only has to grant the divorce. Likewise, if the parents can agree how to divide the child raising time and duties, the court won’t need to make a decision about child custody. But if the parents don’t agree on child custody, then the court steps in and issues a custody order.
How the Court Issues a Custody Order
In these cases, the court will order a hearing and take testimony from both parents. The court may also have other witnesses testify, such as mental health professionals who have treated the child or parents, relatives of the child, and the child’s teachers.
If necessary, the court may conduct further investigation, such as sending mental health professionals or social workers to see the parents’ homes and interview anyone else living there. After examining all the evidence,the judge will make a decision and issue the custody order.
Can a Parent Change a Custody Order?
Parents can change a custody order, but only after demonstrating a significant change in circumstances. Courts prefer not to have children go back and forth between parents more than necessary and will only modify its original custody order if it has a really good reason for doing so.