There are two aspects of custody: legal custody and physical custody. Legal custody gives the parent the right to make important decisions concerning the child, such as education, medical care, and religious training. The parent with physical custody, also known as the custodial parent, has the right to live with the child.

One person may have both legal and physical custody. Another option is that the parties share legal custody, but only one has physical custody. Still another option is that the parties share both legal and physical custody; however this option is seldom used by the court. The court will usually decide that it is in the best interest of the child to reside with only one of the parents.  If there is more than one child, the court will not usually separate the children. 

If both parents agree about custody and visitation, the court will usually accept the terms.  However, as stated above, the court may not allow joint physical custody if the court determines that such an arrangement would not be in the best interest of the child.

If both parents want custody, the court will appoint a law guardian to represent the child.  The law guardian will make an investigation, including having experts interview all parties.  Once the investigation is completed, the law guardian will issue a report and provide recommendations concerning custody and visitation.

When a judge is considering who should get custody, the judge must determine the best interest of the child. Among the many things the judge may consider are the following:

• Which parent the child is currently living with;
• Which parent can provide the most stable home environment;
• History of physical, mental and drug abuse by the parents;
• Current physical and mental health of the parents; and
• Which parent the child wishes to live with (if the child is old enough to express an opinion)

When there is a child of a marriage and the couple is still married but living apart, it is essential that the parent who has the child obtain a court order granting custody of the child. Without such an order, the other parent can take the child and leave the state or country. An order granting custody of the child would be of great assistance in getting the child back should the non-custodial parent remove the child from New York.  Once the child has been out of New York for six months, New York usually will not consider custody or visitation issues.  In such a situation, the matter must be brought in the state or country in which the child resides. 

In New York, both the Family Court and the Supreme Court, which is the court of general jurisdiction have jurisdiction regarding issues of custody. If the parents of the child are not married, they go to Family Court for a determination of custody and or visitation. If the parties are married, these issues are usually decided by the Supreme Court in a divorce action.  After divorce, a party who wishes a change of custody or visitation usually brings the matter to Family Court.

With regard to visitation, the parent who does not have physical custody has the following options:

• Reasonable visitation rights; and
• Specified visitation rights, which, for example, may be limited to every other weekend for the entire weekend and specified holidays or Saturdays or Sundays every week plus specific holidays.

Almost always, the court takes the position that it is in the best interest of the child to have contact with the non-custodial parent. If the court determines that there are issues of the child’s safety, the court may grant visitation on the condition that it be supervised.

If the court grants an order of visitation, the custodial parent may not keep the non-custodial parent from visiting the child, even if the non-custodial parent has failed to pay child support. The issues of visitation and child support are separate.

In New York, rights of visitation are limited to parents and grandparents of the child.

If you have questions concerning custody or visitation, call us at (718) 625-0800 to schedule a free consultation.  During the free consultation, we will inform you of your options and our fees.