What are the types of custody in New York?

Legal custody and physical custody

The New York courts describe custody as having two parts. Each part can be shared or held by one parent.

• Legal custody. The right to make important decisions about the child. Examples are medical care and religious upbringing. The court's parenting plan form also lists education and activities.
• Physical custody. The actual day-to-day care and supervision of the child. The courts note it is also called residential custody.

Before any court order exists, both parents have equal rights to legal and physical custody.

Joint and sole custody

• Joint legal custody. Parents make major decisions together, wherever the child lives.
• Sole legal custody. Only one parent has the right to make major decisions.
• Joint physical custody. The child lives with each parent for an equal amount of time.
• Sole physical custody. The child lives with one parent more than 50% of the time. That parent is the custodial parent.

These can be mixed. A common arrangement is joint legal custody with one parent having physical custody. The court's parenting plan form also allows a custom split of decisions, such as one parent deciding education and the other health care.

Residential parent, parenting time and visitation

The parent the child lives with most of the time is often called the custodial or residential parent. The New York City Family Court glossary defines the noncustodial parent as the parent who does not live with the child. The court's parenting plan form lets parents name a primary residence, or say neither home is primary.

The New York courts say visitation is also called parenting time. A parent generally has a right to visitation unless the court finds a reason to deny it. Grandparents and siblings can also ask for visitation, though a request is not a guarantee.

If a child could be in danger alone with a parent, the court can order supervised visits. It can also order exchanges at a neutral place, often a police station.

How New York courts decide

Domestic Relations Law section 240 directs courts to decide custody by the best interest of the child. It says neither parent has a prima facie right to custody, meaning no automatic head start. The courts add that the child's health and safety are the paramount concerns.

Factors a judge may consider include:

• Which parent has mainly cared for the child
• Each parent's parenting skills and mental and physical health
• Work schedules and childcare plans
• Any domestic violence in the family
• The child's relationships with siblings and other relatives
• What the child wants, depending on age
• Each parent's willingness to support the child's bond with the other parent, when safe

Custody orders can be changed later if circumstances have changed and a new order serves the child's best interest.

Choosing custody terms in mediation

Parents can agree on custody and parenting time themselves, including through mediation. The New York courts say an agreed parenting plan becomes a court order if the judge approves it. In a divorce, custody for children 17 or younger must be decided before the divorce is granted.

Labels matter less than the actual schedule and decision rules, but they can affect other issues, so it is wise to ask an attorney. Smart Divorce NY's flat fee includes an attorney for the legal work. Call (716) 400-7286.