Types of Custody in New York State
by Gary Muldoon
Muldoon & Getz
Rochester, New York
The parents of a minor child are entitled to custody of a child. When the parents do not live together, custody needs to be decided on. The parents may reach an agreement about custody. Or, if a court decides the issue of custody, the standard applied is the "best interests of the child." Domestic Relations Law § 240(1)(a).
There are several types of custody arrangements. One parent or the other may have sole custody, with the other having visitation. Another form is joint custody. A third type is sometimes called shared custody.
Sole custody - Sole custody may be the legal arrangement where only one parent makes the decisions concerning the child.
Visitation - The law of New York State, as decided by courts, favors contact between a parent and a child. It is presumed that visitation is in the child's best interests. Even if one parent has sole custody, the other parent will usually have visitation with the child. So long as a parent is not unfit, a court will allow visitation. Only in extreme cases will "supervised visitation" be required.
Joint custody - Where the parents are able to cooperate regarding the child, joint custody is a frequent arrangement. This allows for the nonresidential parent to continue to be involved in the child's life, including participating in making decisions.
A parent who has joint custody is entitled to take part in the important decisions in a child's life. These might include where the child attends school, decisions involving religion, as well as the ability to speak with the professionals who are involved with the child (teachers, doctors, and the like). With joint custody, one parent typically has primary residence of the child, and the other parent's day-to-day contact with the child is less.
Some exceptions have occurred where joint custody was awarded despite an ongoing acrimonial relationship. For example, joint custody was ordered even though the parental relationship was antagonistic. The court allowed it as the mother, a foreign national, was considering returning to her native country with the children. Had she absconded, the noncustodial parent would have been unable to petition for the children's return. Welsh v Lewis, 292 AD2d 536 (2d Dept 2002).
In another unusual case, joint custody was awarded, with the mother having physical custody and liberal visitation with father; and the mother having ultimate authority over educational and religious issues and the father authority over major medical and financial issues. Both parents were fit and loving, according to the Appellate Division, but each evinced certain deficiencies. Ring v Ring, 15 AD3d 406 (2d Dept 2005).
Shared custody - In rare circumstances, parents may work out a "shared custody" arrangement. In this, the time the parents spend with the child is nearly equal.
Another (infrequent) type is a "split" custody arrangement. Where there is more than one child, the children might live with different parents. New York law discourages "split" custody arrangements. Ebert v Ebert, 38 NY2d 700 (1976). The concern is that, under most circumstances, siblings should grow up together.
A court's decision on custody, or an agreement between parents on custody, can have an important effect on other matters, such as support. New York's Child Support Standards Act (CSSA) requires the noncustodial parent to pay support to the custodial parent. Even with joint custody, the parent with primary residence of the child is entitled to receive support from the other parent.
Modification - Once parents legally agree to a custodial arrangement, or a court decides on custody, it is difficult to change the arrangement. The parent who seeks to modify it has the burden of showing a change of circumstances.
Age 18 - The right to custody, ends when the child turns 18, the age of majority. Domestic Relations Law § 2. Similarly, the right to seek visitation ends at 18. Osmundson v Held-Cummings, 20 AD3d 922 (4th Dept 2005).
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