When it comes to getting a divorce when children are involved, one of the most important issues that will arise is who should have primary residential custody of the children; simply, where will the children be living during and after the divorce?

In New York, there are many nuances that individuals should be aware of when formulating their custody agreements. Furthermore, while sharing parental rights and responsibilities may work best for parents who are willing to co-parent, this may not be the case in all situations and in some cases, it may be in the best interest of the children for one parent to have exclusive or primary physical and sole legal custody. By understanding the different types of custody, you can navigate the process of creating and implementing a custody plan with as little contention and emotional stress as possible.

Recognizing New York’s Custody Laws

Custody Orders dictate each parent’s responsibility for the children’s well-being and how they are to decide on important issues stemming from where the children will be residing to where they will be going to school. Parents need to be aware of two forms of custody when it comes to their matter: residential custody (also known as physical custody) and legal custody.

New York Family Courts can only make orders about the child’s custody until they are 18 years old. In all cases, the court grants custody based on what would be “in the best interest of the child.” In cases where there is no court order present, both parents theoretically should have equal rights of physical custody and joint legal custody of their children.

What is Residential Custody?

When most people think of custody, they are thinking of residential or physical custody, referring to whom the children will live with and spend the majority of their time. That parent would be referred to as the “residential parent.” There are scenarios in which parents could have joint or “50/50” residential custody, however, for a myriad of reasons, this may not always be feasible.

If the parties involved wish to pursue a joint residential agreement, there are a few things that they should keep in mind. First, parents should understand that stability and predictability are important for children, especially younger children. Second, since the parents may be living a considerable distance apart, long distances and extended travel times might be too much for younger children to tolerate and could impact their social and emotional development. Lastly, these types of agreements require consistent and thorough communication, which isn’t always the case in split parties. However, for the sake of their children, by keeping a frequent and civil communication line between each other, parents can ensure that their children are being taken care of and are experiencing as little stress as possible following their separation.

Regardless, in other scenarios, this does not mean that the non-residential parent would be relegated to only seeing their children once every other weekend or something of that sort. Custody matters are rarely as black and white as they appear, and in most cases, the non-residential parent will have much more frequent contact with their children and conceivably be with them for up to 49% of their time.

One wrinkle that may arise when it comes to matters of residential custody is determining who is responsible for providing and receiving child support. The custodial parent will almost always be the parent who receives the support, regardless of the income of the parents. In 50/50 cases, generally, the parent who earns less will be the “custodial parent” for the purpose of receiving child support.

While there are many more nuances when it comes to child support, it is important to understand how it relates to matters of custody when it comes to fully grasping matters of residential custody in New York.

What is Legal Custody?

Legal custody addresses the more nuanced aspects of the children’s upbringing, including matters relating to education, medical care, and religion. Similar to residential custody, legal custody can be sole or split depending on a variety of factors. However, these two forms of custody can be granted independently of one another. For example, the residential parent could spend the majority of the time with their children but have no decision-making authority when it comes to the previously mentioned matters. While this is uncommon, it is important to realize this distinction.

The reason is that joint legal custody is fairly common for former spouses who can get along and co-parent efficiently. Alternatively, parents may also split the decision-making rights among each of the areas. For example, one parent may decide if the children will be raised religiously, while the other might choose whether they will attend a private or public school.

The ability of the parties to effectively co-parent, whether one of the parents has demonstrated particularly poor parental judgment in some way, or whether one of the parents has unusual expertise in a certain area, are just a few of the many factors that a court will take into account when deciding who will have legal custody of a child.

Factors That Affect How Custody is Decided

While touched upon prior, generally New York State Courts will adhere to the best interest of the children standard when determining which parent should be the primary physical and legal custodian. Some factors that the courts may consider when it comes to determining this include:

• Which parent has been the primary caretaker;
• Each party’s parenting skills;
• Each party’s mental and physical health;
• Each party’s work schedule and their respective childcare plans; and
• The children’s preferences.

There are many ways to prove parenting skills and knowing what options are available is critical. A judge can award joint or sole legal or residential custody. Furthermore, if a parent violates a custody order or visitation agreement, the other parent would be able to seek a court order to ensure these orders are followed.

In summary, determining both residential and legal custody will be a part of any divorce or custody case involving children. Despite the complex and various ways in which these two issues interact, they are still two separate and unique sets of legal rights.