If a couple decides to divorce and they have children together, they will need to determine custody of the children. While the couple may generally be familiar with the term custody, they may not know that there is more than one type or be aware of the factors the court may consider in a custody matter. In New York, a court may determine the custody of a child until he or she is 18 years old.
Physical and legal custody
There are two types of custody, called legal custody and physical custody. The parent who has legal custody can make important decisions for the child about education, medical care and religion. If the parents have joint legal custody, both parents must make the decisions together. If the court orders sole legal custody, then only one parent has a right to make those decisions.
In New York, physical custody is also known as residential custody. It refers to the physical care of the child. If the parents have joint physical custody, the child lives with each parent for an equal period of time. If the court orders sole physical custody to one parent, the noncustodial parent may be awarded visitation.
The court will often hold a hearing to determine a visitation schedule, unless it determines that it is not appropriate for one parent to have visitation. Other family members may also request visitation, such as the child’s grandparent or sibling.
Best interest of the child
The court will decide custody or visitation based on the best interest of the child standard. Generally, the court will consider which custody arrangement will support the child’s health and safety, as well as which parent is in the best position to care for the child.
It may also review their parenting skills, ability to provide for the child’s needs, whether there has been previous domestic violence, the child’s relationship with the family and depending on the age of the child, it may consider the child’s preference.
The child custody process can be complex, but there is assistance available to parents.
