Custody refers to the legal right to care for a child. A New York court may make custody determinations if a child has resided in the state for a minimum of six months. There are two types of custody that a New York court can assign: legal custody and residential custody. Legal custody is the right and responsibility to make decisions for a child. Residential custody is where a child will live. The court may make decisions about the custody of a child until the child is 18 years old. The court makes all custody decisions based on what it believes is in the best interest of the child, and does not favor one parent over the other on the basis of gender. The custody decisions may be made either by a judge or referee at trial, or in an agreement reached by both parents through the voluntary mediation process.
Sole or Joint Custody
A parent may receive either sole or joint custody. In a sole custody situation, the child lives with the parent, who makes all decisions concerning the child. This includes decisions about such major life events as education, health, and religion, as well as the smaller day-to-day decisions. The other parent has no legal rights over the child and no legal right to weigh in on any of these decisions. In a joint custody situation, both parents must agree on major life decisions, and the smaller, day-to-day decisions in joint custody are made by the parent who is physically caring for the child at the time.
How the Court in New York Determines Which Type of Custody is Best for the Child
In determining what type of custody situation is in the best interest of the child, the court considers all relevant factors. The most common factors considered are which parent has been the main care giver; whether the parent has the ability to care for a child with special needs, if any; the mental and physical health of the parents; whether there has been domestic violence in the family; the work schedule and child care plan of each parent; the child’s relationship with other members of the family, including siblings and grandparents; the child’s own wishes, if they are old enough to express them; and each parent's ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so.
For additional information on child custody in New York, please call Stacy Sabatini, Esq., Family Law Attorney, at (845) 243-0295, or fill out our secure online form for a free, 30-minute consultation.