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New York Child Custody Frequently Asked Questions

Q. What is the meaning of child custody in New York?

A. 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.

Q. Can my spouse and I agree who gets custody of the children when we get divorced?

A. Normally, a New York court will respect a couple’s decision regarding who is awarded child custody. However, the primary concern is the best interests of the child, so the court will weigh other factors in addition to the couple’s desires. In the case of an older child, the court will want to know their preference.

Q. How does a court decide child custody if my spouse and I don’t agree?

A. 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
Q. What happens at a custody hearing?

A. 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.

Q. Can child custody be modified later?

A. Yes, child custody can be modified in light of a change in a substantial change in circumstances if it is in the child’s best interests.

Q. Is the mother usually given custody?

A. There is no preference for one gender or the other regarding custody in the state of New York. One out of every six custodial parents in the United States are fathers, but that is often due the choice of the couples involved or the individual circumstances of the parties.

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