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Can a court order parents to share joint custody?

On Behalf of | Nov 5, 2020 | Child Custody |

It isn’t easy for courts to decide issues of child custody. They must balance the interests of both parents, but first and foremost comes their determination of the child’s best interests. New York law recognizes that in most cases it’s in a child’s best interests to have continued, frequent contact with both their parents. So, can a court order parents to share joint custody?

Under New York law, the answer is no. The parents must agree to share joint custody. They must work out a parenting plan, which will include a schedule for visitation and other matters. The court may ask to review the plan, but the parents must agree to it. If the parents can’t reach terms, and their case must be decided by the court, the court will most likely order some form of sole custody for one parent.

It’s important to note that even in cases where one parent has sole custody, the other parent typically retains parental rights. They may have a right to regularly scheduled visits, and have some say in making important decisions.

Physical and legal custody

To understand why this is so, first consider that a parent’s rights include both to spend time with their child, and to make decisions about the child’s immediate care and their future. The law refers to these aspects of parental rights as physical custody and legal custody.

Physical custody refers to the right to live with a child. It can also include visitation rights when the child lives with the other parent.

Legal custody refers to a parent’s right to make decisions about a child’s education and upbringing. Typically, in cases where the child lives with one parent full-time, the other parent retains some rights under legal custody. For instance, the custodial parent should consult with the noncustodial parent before transferring the child to another school.

Creating a parenting plan

It can be difficult to sit down with an ex and craft a joint custody agreement and parenting plan, but this is usually the way to reach results that will work best for everyone involved. After all, who knows what works better for a specific child, the child’s parents or a judge? A skilled family law attorney can help clients reach an agreement that respects their rights and protects their child.