Child Custody in New York

In New York, there are two parts to child custody. One part is the right and responsibility to make major decisions for a child (legal custody). The other part relates to where a child will live (residential or physical custody). Likewise, there are two types of custody: sole custody and joint custody.

Where a parent has sole custody, he or she has both legal and physical custody of the child and has the right to make the major decisions regarding the raising of that child. Major decisions include such matters as education, religion, medical and dental treatment, childcare, extra-curricular activities, summer camp and recreation. Sole custody is sometimes the only solution for parents who are unable to communicate with each other, treat each other with respect or have completely different values and goals for their child.

Sole custody, however, does not extinguish the rights of the non-custodial parent. Absent extraordinary circumstances, the non-custodial parent is entitled to regularly scheduled visitation with the child. Furthermore, even where one parent has sole custody, a court may require the custodial parent to inform the non-custodial parent of decisions that he or she has made regarding the child.

Where parents share joint custody, both are considered to have legal custody of their child, while one of them is designated as the primary residential parent. The essence of joint custody is that the parents agree to consult with each other on major decisions regarding the child. Routine, day-to-day decisions, though, are made by the parent who is physically caring for the child at the time.

New York’s child support statute is written in terms of custodial and non-custodial parents, and is silent with respect to joint custody. This does not mean that there is no child support obligation in cases of joint custody. The courts have determined that the parent who has the child the majority of the time will be considered the “custodial” parent and, therefore, will be entitled to receive child support payments from the “non-custodial” parent. In those cases where the parties’ time with the child is split evenly, the parent with the greater financial resources will be required to pay child support to the other parent.