How Is Custody Determined In New York? Explaining The Basics

Whether you’re in the midst of divorce in New York, or you are considering divorcing your spouse, you may be wondering who will have custody of the children, who will they live with, and who will make the decisions about their care?

Child custody is very contentious for obvious reasons, so it’s important to have knowledge of the basics before seeking custody of your kids. You should also hire an experienced team of New York child custody attorneys, such as the attorneys at WertheimerLipton. Our firm can help you and your spouse reach an agreeable outcome that’s in the best interests of your children. 

What Are The Different Types Of Child Custody?

First, it’s important to distinguish the two different types of child custody in New York.

• Physical custody – This is the parent with whom the child primarily resides. This parent is also called the “custodial parent.” The parent who does not primarily reside with the child will have “visitation” rights with the child.
  
  
• Legal custody – This is distinct from physical custody, and refers to who makes the decisions about the child’s care, upbringing, and other parts of their lives. This could include schooling, religion, and medical issues.
  

Parents can share both legal and physical custody. This is called “joint” custody. In joint physical custody, the child lives with both parents equally. In joint legal custody, both parents must make decisions for the child together. 

Alternatively, “sole” physical or legal custody may be awarded to one parent. However, it’s important to note that “sole” physical custody just means one parent has the child more than 50% of the time. The other parent will still have visitation rights and the right to parent their child. 

How Is Child Custody Determined?

Under New York law, child custody is determined by the “best interests” of the child. This is the most important determining factor when considering which parent will receive physical and/or legal custody. Both legal and physical custody are awarded based upon the child’s best interests. 

What Is In The Child’s “Best Interest?” 

When determining the child’s best interest, the court will look at a variety of different factors. These can include but are not limited to:

• How long the child has been residing with one or the other parent
• The location of the child’s current primary residence 
• Whether or not one parent is better equipped to handle the child’s needs
• Any history of domestic violence or abuse by either parent
• Drug or alcohol use/abuse by either parent
• The residence of siblings, if applicable
• The stability of the home environment provided by each parent
• Strong bonds that exist between the child and one parent
• The child’s preferences, if old enough
• The work schedule of both parents
  

Essentially, the judge will look at every aspect of both parent’s life and lifestyle, and use this information to determine where the child will have a better life that protects their “best interests.”

‍Contact Our New York Child Custody Attorneys For The Help You Need

At WertheimerLipton, we understand how important your children are, and how difficult it can be to agree on child custody and other such matters during and after divorce.

We will always advocate for your best interests, and help you find a solution that will allow your children to grow, thrive, and continue to live their best life. Contact us for a consultation now and get the assistance you need today.