New York Child Custody Frequently Asked Questions

When discussing child custody, it is important to be clear.

Physical custody involves where the child lives. If parents have shared physical custody, then the child would live at the homes both parents for about an equal amount of time. Or physical custody could be awarded to one parent, in which case the noncustodial parent would be awarded visitation rights.

Legal custody is the authority for a parent to make important decisions for a child, such as medical, educational, cultural and religious decisions. Often, parents have joint legal custody, but this is not always the case.

If the parents cannot decide on who had physical custody of a child, the court will decide who the custodial parent will be. The court will consider a number of factors including

• Home environment of each parent
• Other people who may be living in the homes of the parents
• Prior criminal records
• Proximity to schools
• Mental and physical health of each parent including drug and alcohol abuse
• Who has been the primary caretaker
• Parents’ work schedules
• Parenting skills
• Domestic violence history
• The child’s desires which are given more weight as the child gets older
• Each parent’s willingness to cooperate with the other
• Who has physical custody of the child’s siblings

If the parties agree regarding who should get child custody, and the judge has no reason to think there is a danger to the child, the judge may ask both spouses to testify and then enter an order without a formal hearing.

If the spouses contest custody, a formal hearing will be held, and a lawyer may be appointed to represent the child. The court may order an investigation and consider reports from mental health and social services professionals. The court will then award custody based on the best interests of the child.

To change a custody order, you must petition the court. Custody decisions are not made lightly. A court will not disturb a custody arrangement unless there has been a substantial change in circumstances, such as one parent wishing to relocate, a parent becoming neglectful or abusive, a change in a parent’s work schedule, or the child wishes to live with the other parent. Ultimately the judge will order a modification to the custody agreement only if it is in the best interests of the child

If you have custody of your child pursuant to a court order, typically you will not be able to relocate to a different state or even a different county without first getting permission from a family court judge. The judge will consider factors such as the parent’s motivation for moving, the relationship of the child with the noncustodial parent, the mental and physical health of the child, and the relationship of the child with extended family. If the custodial parent relocates against the wishes of the other parent and without first getting permission from the court, the custodial parent would face sanctions from the court and might even lose custody.

Seen most often in contentious divorces, parental alienation occurs when one parent intentionally damages the child’s relationship with the other parent by manipulating the child into having negative feelings toward the other parent. The result of parental alienation is that the child does not wish to see the other parent. Parental alienation can be difficult to reverse, and many view parental alienation as a form of child abuse.