Two types of child custody exist in New York: legal and physical. The custody types determine critical matters about how responsibilities for your child are divided between you and your child's other parent. They concern who makes major decisions about your child's care and upbringing, who your child will live with, and, if your child will primarily live with one parent, how often your child spends with the other parent.
You and your child's other parent can agree together on custody arrangements. However, if you are unable to do so, the court may decide for you based on what is in the best interest of the child.
This blog will explore New York's two types of custody, how custody is determined, and what you can do if your current custody arrangement is not working out.
What Is Legal Custody?
Legal custody refers to each parent's decision-making rights concerning their child's well-being.
When legal custody is ordered, one or both parents may have a say in the child's:
- Medical care
- Health care
- Religious practice
- Extracurricular activities
Legal custody may be ordered as sole or joint. When sole custody is awarded, that means only one parent makes important decisions about the child's care. The other parent may be informed of the child's major life events, but they will not necessarily have input on the direction of the child's life.
When joint custody is awarded, the parents share decision-making responsibilities. This type of custody requires clear and open communication between parents, as both must agree on various aspects of their child's life.
What Is Physical Custody?
Physical custody concerns supervision of the child or which parent the child lives with. As with legal custody, physical custody can be awarded as sole or joint.
If a parent is given sole physical custody, the child will live with them more than 50% of the time. They are referred to as the custodial parent, and the other parent is the non-custodial parent. The non-custodial parent gets visitation, which is time they can spend with their child. The custodial parent may receive child support from the non-custodial parent.
If joint physical custody is awarded, the child lives with both parents 50% of the time. In some cases, even though parents have joint custody, one may be ordered to pay support to the other. This is typically based on the incomes of each parent.
How Is Child Custody Decided?
Child custody can be decided in one of two ways. The first is through mutual agreement between both parents. They may decide on an arrangement on their own or go through mediation to have a neutral third party facilitate talks and determine what is best for the family.
When parents decide custody matters together, they avoid having to go to court. After they have come to an agreement, they submit their proposed arrangement to the court, where the judge will review and approve it, provided it is in the best interest of the child.
The second way custody may be decided is by a judge. This method is typically pursued when parents cannot agree. The judge will hold a hearing in which both parents present testimony supporting their assertions.
When determining child custody, the judge does not favor one parent over the other. Instead, their determination is based on what is in the best interest of the child.
Factors the judge will consider include, but are not limited to:
- Which parent has been the child's primary caretaker
- Each parent's parenting skills
- Each parent's mental and physical health
- Whether there is a history of domestic violence
- Each parent's work schedule
- The child care arrangements
- The child's relationships with other family members
- The child's preference (if age appropriate)
- Each parent's ability to cooperate with the other
Can a Custody Order Be Modified?
If an existing child custody order is not working out, one or both parents may file a petition to have it modified. Because the court is concerned with protecting the child's health and safety, it will not modify a child custody order unless there has been a substantial change in circumstances.
Note that when an order is in place, both parents must abide by the provisions. To go against them without them being modified is a violation and could lead to legal action.