Home | Custody and Visitation

Where parties cannot reach an agreement regarding custody and visitation, a court will determine these issues on the basis of what it believes to be “the best interests of the children”.

Where custody is contested, a law guardian is appointed to represent the children. A law guardian will interview the children and undertake an investigation for the purpose of issuing a recommendation regarding child custody and an appropriate visitation schedule. Obviously, the older the child, the more impact his or her desires will have on the issue of who they will reside with. Additionally, prior to trial, a court will usually order the parents to undergo a forensic examination by a neutral psychologist or psychiatrist who will also make a recommendation to the court as to who should be awarded custody.

The term “custody” can have different meanings and therefore it is important to be precise when using the term. One aspect of custody involves where the child will live and is termed “residential custody”. Another aspect of custody involves decision making authority and is termed “legal custody”. Such decisions include residence of the child, medical and dental treatment, education, child care, religious education, extra-curricular activities, summer camp and recreation. It is possible for one parent to have residential custody but both parties enjoy joint legal custody. This means that the child lives primarily with one parent but that both parents have an equal say in major decisions affecting the child. Frequently, parents will say that they want “joint legal custody”. However, this must be agreed to by the parties since a New York Court will not “order” joint legal custody in the absence of agreement between the parties.

Before rendering a decision on custody at trial, a court will consider the "totality of the circumstances". Among the factors considered are the effect of a separation of siblings, the wishes of the child, if the child is old enough, the length of time that the present custody arrangement has been in effect, which parent has been the primary caretaker, the relative stability of the respective parents, the availability of the parents to care for the child, the respective educational backgrounds of the parents, the financial standing of the parents, and the refusal of a parent to permit visitation and/or the willingness of a parent to encourage visitation.

Notwithstanding the fact that a parent may not have residential or legal custody, non-custodial parents enjoy certain rights. One such right is the right to be kept informed about the child’s health and education. Another right is the right to meaningful visitation. Typically, non-custodial parents will enjoy at least alternate weekends as well as alternate holidays with their children.