Child custody is not just another issue
“Custody” is a frequently misunderstood term. Sole Custody (sometimes referred to as Legal Custody) and Joint Custody, the most common types of custodial designations, are often viewed as terms that tell how much time a child or children will spend with each parent when, in fact, the terms actually define the role of each parent in decisions regarding the child’s health, education, religion, and other major issues in their lives, but not time in any way. The term “physical custody” defines the parent which whom the child or children will primarily reside, but a parenting schedule, not the name given to the type of custody, will be what determines how much time children spend with each parent. Shared Custody, an arrangement where the goal, generally, is to have the child or children spend as close to an equal amount of time with each parent as is possible and practical, has been growing in popularity in recent years and is an option that has begun to redefine traditional concepts of custody and visitation. Custody can be determined by the court or the parties can agree in a Separation agreement or Stipulation of Settlement to their own terms, which will generally be approved by the court.
Courts decide custody by determining what is in the “best interests” of the child. It is a difficult standard to define. The Court will consider a multitude of factors including age and sex of the child, the role each parent played in the child’s life prior to the commencement of the custody proceeding and what has taken place during it, the willingness and ability of one parent to allow for the smallest disturbance possible in the child’s day to day life and even the preference of the child (with the weight of that opinion bearing a direct relationship to the age of the child.
New York prohibits determinations based on gender and men are increasingly being granted custody. There are, basically, three types of custody, but within each title there is little limit to how the custodial arrangement can be structured.
Sole Custody – An arrangement whereby only one parent has physical and legal custody of a child and the other parent (generally) has rights to visit with the child.
Joint Custody – With Joint Custody, while one parent will still be the physical custodian of the child, both parents will enjoy a shared role in the making of decisions on substantial questions relating to educational issues, religious matters, medical options and other significant issues which may present themselves in a child’s life. Merely titling a custodial arrangement as ‘joint custody’ will do little to foster the spirit of true joint custody, which benefits both parent and child alike, if both parents fail to exert their best efforts to work cooperatively.
Shared Custody – Defined in Section 9 of the Federal Child Support Guidelines as a situation where each spouse “exercises a right of access to, or has physical custody of, a child [of the marriage] for not less than 40 per cent of the time over the course of a year” shared custody is actually a variant of joint custody in which each parent has periods of physical custody of the child, generally intended to divide the time as close to equally as is practical. To give this relationship its best chance of success (and to be fair to the child) the parties generally need to live in close proximity to each other so the child is always close to school and friends
Visitation – Visitation, now referred to as parenting time, is viewed as part of the joint right of the child and non-custodial parent to an ongoing relationship. The love and guidance of the non-custodial parent is highly valued and promoted by the court in the absence of any factors which would be harmful to the child. As a rule the basic form of parenting time for the non-custodial parent is alternating weekends & holidays, shared time on the child’s birthday, time on the parent’s birthday and Mother’s or Father’s Day as may be applicable, alternate school vacation weeks (where the parent’s schedule allows) and two weeks or so in the summer. This is a basic schedule and additional time or a modified schedule is not at all unusual
Relocation (with the children) – The Courts use a “best interests of the child” standard to decide whether a parent will be able to re-locate away from the geographic area where the non-custodial parent resides. To determine the “best interests of the child,” the courts utilize the approach adopted by the New York Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). The court will consider:
- Each parent’s reasons for seeking or opposing the move.
- The quality of the relationships between the child and the custodial and non-custodial parents.
- The impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent.
- The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally and educationally by the move.
- The feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements, and
- The negative impact, if any, from continued or exacerbated hostility between the custodial and non-custodial parents, and the effect that the move may have on any extended family relationships.
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