What You Need to Know About Child Custody (in New York)

By David P. Badanes, Esq.
If you are getting divorced and have children, issues involving the children are usually the most difficult ones. As with most things in a divorce, either you and your divorcing spouse can enter into an agreement about child custody or the Court will issue a child custody order. When discussing child custody, it is important to distinguish the concept of decision-making and the concept of time with the child. Although, the two concepts are related, just because one parent has more time with the child does not necessarily mean that parent has decision-making authority. This article will focus on decision-making.

Most Judges will tell you that they prefer if the parents can come to an agreement about child custody. Most attorneys will agree with that assessment. A child custody agreement will almost always be more detailed than a Court’s Order. Having a more detailed agreement, will help to prevent future disagreements. Of course, there are situations where the parties just will not be able to agree and a Court’s Order will be necessary.

What does a Child Custody Order or Agreement decide? All custody orders should decide who gets to make the following Three Major Decisions: (i) Medical Decisions; (ii) Educational Decisions (including what school the child attends); and (iii) Religious Decisions. In addition, the following other areas should also be in any child custody order or agreement: (i) Extra-Curricular Activities; and (ii) Where the Children live.

When it comes to making the major decisions for a child, there is

  1. Sole Legal Custody: A parent who has sole legal custody will get to make all the major decisions for the child. Furthermore, in most instances, that parent will also get to make the decisions about what extra-curricular activities the child engages in.
  2. Joint Legal Custody: In theory, joint legal custody means that both parent have equal decision making power for the children. However, in practice this might not be true. Oftentimes, when there is a difference in opinion on a major decision, one parent may have the right to have “final decision making”. In other instances, one parent may have the right to make decisions on one area (for example, medical decisions), and the other parent may have to right to make decisions in a different area (for example, educational decisions).

Although, typically the parent who has sole legal custody will have more time with the children, that is not always the case. Similarly, just because the parties have joint legal custody does not mean that each parent will have 50% of the time with the children. Indeed, in most cases, one parent will still have the majority of the time with the children, but, they still may have joint legal custody and the right to share decision making.

If the Court is forced or makes the custody order, then it will almost always award one parent sole legal custody. The Court decides custody by determining what is in the “best interests of the child.” In order to do that, here are some of the main factors that the Court will consider:

  • Willingness to foster a relationship with the other parent
  • Child’s preference
  • Who has been the primary caregiver
  • Availability of the parent
  • Quality of Care
  • Abuse or neglect
  • Domestic Violence
  • Alcohol or Drug abuse

As already stated, whether or not there is sole legal custody or joint legal custody, does not necessarily direct which parent has most of the time with the children. There are many different ways that the children can spend time with each parent. That will be the subject of a separate blog.

If you have questions about child custody, you are seeking custody or you are seeking a divorce, contact David Badanes, Esq. and the Badanes Law Office, P.C. David Badanes and the Badanes Law Office, P.C. have represented numerous parents in their custody actions and in their divorce. If you live in Suffolk County or Nassau County, contact David Badanes and the Badanes Law Office, P.C. today at 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

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