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Custody & Visitation
Child Custody and Visitation Rights
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In New York, child custody is often the most challenging issue presented in a family law situation. Parents do not have to be married for child custody issues to arise. Upon dissolution of the marriage and/or the termination of cohabitation, the need to address a number of issues becomes paramount, such as:
- With whom shall the children primarily reside?
- What constitutes an appropriate parenting/visitation schedule?
- How are major decisions affecting the child(ren)'s welfare going to be made by the parents on a going forward basis?
If you're fighting a child custody battle with your spouse, have the experienced child custody attorney from Wand & Goody LLP by your side.
Child Custody in the State of New York
Child custody in New York generally denotes a parent's degree of control, guardianship, and responsibility for a child under the age of 18 years. A child who has attained the age
of 18 years is no longer subject to a judicial determination of child custody. However, New York law requires parents to support their children until the age of 21, unless earlier emancipated.
New York State recognizes two distinct types of child custody:
- Residential/Physical Custody denotes with whom the child(ren) primarily reside(s) the majority of the time. Issues impacted by this designation, among others, include where the child(ren) will attend school (presuming public school attendance) and which parent shall receive child support.
- Legal Custody denotes a parent's right to make major decisions regarding the child(ren)'s welfare, such as medical, educational and religious decisions.
Derived from the aforesaid concepts is an array of custodial possibilities. The most common of these options are as follows:
- Sole legal and physical / residential custody entails one parent retaining exclusive decision making authority on behalf of the child(ren), together with a designation that the parties' child(ren) primarily reside with him or her. Although representing the most one-sided of custodial determinations, it nonetheless most frequently remains subject to the non-custodial parent's visitation / parenting time, as well as the non-custodial parent's rights to have access to all important information regarding the child(ren), such as medical and educational.
- Joint legal custody with primary physical/residential custody to one parent entails both parents sharing decision making authority and responsibility on behalf of the child(ren), while said child(ren) primarily reside with one party and the other party enjoying visitation/parenting time.
- Joint legal and physical/residential custody entails both parents sharing decision-making authority and responsibility on behalf of the child(ren), together with an equal, shared parenting schedule or, in other words, equal time with their child(ren). This represents the purest sharing of custody between two separated parents. It is rare for a court to grant such an arrangement, absent both parties' consent, due to the limited circumstances under which such an arrangement is practical i.e., both parents residing in close proximity, both parents maintaining sufficiently amicable relations, etc. As a general rule, the separation of siblings is frowned upon. However, where circumstances warrant, and if it is in the best interest(s) of the child(ren), separation of siblings can be negotiated between the parties, and/or be ordered by a court.
Almost every time a divorce takes place, it results in some diminution or contact between parents and the child(ren). Whatever time is spent with one parent leaves the other somewhat in the dark as to the time the child(ren) spend(s) with the other parent.
For this reason, it is important to agree to share certain types of information. It is fairly obvious that information about medical matters, educational matters, and special events should be shared.
What might not be so obvious is that information about disciplinary situations and emotional health should also be shared. Parents must confer not only to have the opportunity to participate in special situations and know about their children, but also so that children understand that both parents are informed and united on important issues.
As discussed above, custody is separated into two different concepts - physical custody and legal custody. Legal custody is a distinct concept from physical or residential custody and is related to the making of important decisions. Thus, legal custody involves decisions regarding health, education, and welfare.
Major decisions do not refer to normal, day-to-day decisions or emergency medical decisions, which must be made by whichever parent has physical custody of the child(ren) or visitation/parenting time at a particular time.
In our experience, the most important consideration regarding joint legal custody is whether or not the two parties can communicate well enough to discuss matters. It is important that both parents and children have a sense that there is continued cooperation between parents and continued involvement with the children.
This certainly enhances the child(ren)'s feeling that he/she has not been "abandoned" or "left" by either parent. On the other hand, if every time a major decision has to be made, the result is fighting and bickering, then joint legal custody would not be an enhancement for either the parents or the child(ren).
Child Visitation Rights and Parenting Time
Visitation is the right of the child(ren) to see his/her non-custodial parent. It is a concept closely tied to traditional custody solutions wherein one parent has the primary physical custody of the children and the other parent becomes the visiting parent.
If you choose this type of parenting situation, then it becomes important to work out a comprehensive schedule of visitation entitlement for the child(ren) and the non-custodial parent. However, even if you have worked out a sharing of physical custody, certain aspects of the schedule may require modifications in the future.
Different family traditions or special occasions such as birthdays, confirmations, bar mitzvahs, wedding, etc., may require that the child(ren) visit with a particular parent on a particular day or occasion. This may be true no matter what kind of parental sharing agreement is in place.
Parents should be aware that children look forward to the visiting parent picking them up and being with them during visitation times. They may become disappointed if the visiting parent fails to honor the schedule.
In addition, the child(ren) may be disappointed when they are picked up for a visit with their father or mother, and then are left with a girlfriend, aunt, uncle, or grandmother, while the visiting parent engages in an activity without the child(ren).
As the child(ren) get(s) older, into their teenage years, they are not always amenable to following a visitation schedule that has been agreed upon by their parents, the lawyers, etc. Whether a teenager visits with a parent or not often depends on the relationship between the teenager and the parent.
A good relationship between the non-custodial parent and the child(ren) during the child(ren)'s earlier years will ensure that the non-custodial parent continues to enjoy a close relationship following the divorce.
Courts are reluctant to order an older teenager to visit with a parent where there is an unequivocal desire by the child(ren) to not visit with the parent, particularly where there has been, for example, an erratic visitation pattern by the non-custodial parent, or the failure to pay child support. Whether a court will order the child(ren) to visit is a matter that must be decided on a case-by-case basis.
Visitation Schedules
An example of a basic visitation or parenting schedule might reflect the following:
- Alternate weekends from Friday 5 pm through Sunday 7 pm
- One afternoon during the week from 5 pm to 8 pm
- Alternate holidays
- Two to four weeks during the summer
- Father's Day with the father
- Mother's Day with the mother
- Children's Birthday alternating years
- Father's Birthday with the father
- Mother's Birthday with the mother
Schedules should be customized to meet the needs of the family.
Holidays
Holidays are important. They often involve family traditions, as well as days off from school. It may be that holidays important to one parent are not very important to the other. If that is the case, it may influence who will be scheduled to be with the child(ren) on a particular holiday.
Think not only of the usual major holidays such as Thanksgiving, Christmas, Easter, New Years, and Labor Day, but also about other holidays that may have special significance such as religious holidays or Memorial Day, if that is when you traditionally get together with your parents for a weekend picnic.
Consider which holidays may have special significance to both of you. You can consider alternating the holiday so that each of you will have the child(ren) on alternate years, or splitting the holiday so that part of the day is spent with each of you. In general, one day school holidays which fall on a Monday are often considered part of the weekend.
Lengthy school vacations such as Christmas, Easter, and February break, not only represent an opportunity to have an extended time with the child(ren), but they also represent a responsibility to provide child care, especially when children are young.
Often people use a long school holiday to take a trip or family visit. In these cases, you might consider your usual pattern and agree that the child(ren) will spend the extended vacation with one or the other of you. Here, too, alternating by year might work.
Extended Vacations
Most people want the right to take their child(ren) with them on an extended vacation at least once each year. We have already discussed vacations during the school year, but most often vacations take place during the summer months.
The important issues here are whether the child(ren) want to go on the vacation and that the non-vacationing parent is informed well in advance of the vacation and the location, so that the child(ren) can be reached in case of emergency and vice versa.
Visitation With Relatives
For some people it might be important to include some thoughts regarding visitation with grandparents or other special people in the child(ren)'s life. The child(ren) often have meaningful and sometimes very important relationships with family members other than their parents.
"Competence, experience, and persistence you can trust." These words are not offered lightly. It is the firm's philosophy in representing its clientele. If you are interested in speaking with an attorney of the firm, contact our Long Island divorce and family law firm at (631) 462-3434 or by email at legal@goodylaw.com to arrange a consultation to discuss your specific circumstances.
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