Child Custody

How Child Custody is Decided in New York

The New York courts describe child custody as “a parent’s legal right to control his or her child’s upbringing.” Sometimes, the courts refer to custody as “parenting.” When one parent does not have custody, they’re likely to receive visitation, which is another term for spending time with one’s children. Under New York law, both parents have the right to ask the court for custody and visitation when they’re getting divorced.

Legal Custody Versus Physical Custody

Like all states, New York has split custody into two parts: legal custody and physical custody. Legal custody refers to a parent’s ability to make important decisions about their child, such as where the child attends school, medical care, religious upbringing, mental health services, extracurricular activities, and so on.

Physical custody on the other hand, refers to which parent the child lives with on a day-to-day basis. When a parent has primary physical custody, the child lives with that parent most of the time, and they are called the “custodial parent” or the child’s primary caretaker.”

How Judges Decide on Child Custody

Generally, parents are encouraged to reach a child custody agreement on their own and with the assistance of their respective divorce attorneys. If the agreement is realistic and practical, usually all a judge has to do is sign off on it. However, if parents can’t reach such an agreement, a judge will have to decide on custody for them.

When a judge is deciding on child custody and visitation, he or she makes a decision based on the child’s best interests. Some of the factors considered by a judge include:

  • Which parent has been the child’s primary caretaker
  • The quality and comfort of each parent’s home
  • How fit a judge believes a parent to be (e.g. good judgement, a good job, a stable home, good physical and mental health)
  • Which parent the child is living with now and how long they’ve been living with the parent
  • If the child is older and mature enough, which parent he or she wants to live with
  • If either parent has a history of domestic violence or substance abuse
  • If the child would be separated from any of their siblings

We hope this helps clear up some of your questions. To learn more about how child custody is determined in New York, please contact Jason M. Barbara & Associates, P.C.