Guilderland, NY – Under New York law, there are two components to custody: legal custody and physical custody. “Legal custody” is about the right to make decisions regarding a child’s
welfare (e.g. the health, education, and religious upbringing of a child). “Physical custody” is about where the child will live. When one parent has “primary” physical custody, it means that the child lives with that parent the majority of the time. When parents have “joint” legal custody, it means that each parent has an equal right to make decisions affecting the child. It is important to understand the difference between these two components; just because one parent has “primary” physical custody does not mean he will also have “primary” legal custody.
The marital status of the parents is not a factor for determining custody. As long as paternity has been established, New York treats each parent the same for purposes of determining custody. In other words, there is no presumption in New York that the mother, for example, has a greater right to custody of the children than the father. If there is no Court Order concerning custody, then either parent has a right to keep the child with him/her.
When a Court is asked to make a custody determination (whether legal or physical custody), the Court must make its decision based upon “the best interest of the child, and what will best promote [the child’s] welfare and happiness.” N.Y.D.R.L. Section 70(a).
When deciding the “the best interest of the child,” the Court will look at a multitude of factors; for example, the Court can consider the home environment of each parent, the work schedules of each parent, the level of involvement each parent has had with the child, the child’s relationship with each parent, whether either parent nurtures the child’s relationship with the other parent or extended family members. The ability of the parents to communicate effectively and cooperate in making parenting decisions is especially important when a Court is determining whether “joint” legal custody is appropriate.
When custody is an issue for the Court to determine, the Court will (almost always) assign an attorney to represent the child’s interests. The job of the “attorney for the child” (with a few exceptions) is to advocate for what the child wants. People sometimes presume that this means that the child’s preference to live with one parent or the other will control the Court’s decision. That presumption is false. While it is true that a Court can consider a child’s preference the Court is not bound by what the child wants.
Although single parenthood has become more common, it is important to remember that another person had to be involved in creating the child and the law gives that person certain rights (and responsibilities), regardless of what your preference may be or the status of your relationship with the other parent.
Visit our www.tklawllp.com for additional information.
Leyla A. Kiosse is a partner at Tabak & Kiosse, LLP, a law firm located in Great Oaks Office Park (near Crossgates Mall). Along with her partner (Margaret Tabak), Attorney Kiosse counsels clients on all matters related to matrimonial and family law. A Guilderland native, Attorney Kiosse received her undergraduate degree from Union College and her law degree from Albany Law School. If you have questions about a matrimonial or family law issue, contact Attorney Kiosse for a consultation by calling 464-4095 or by visiting the firm’s website, www.tklawllp.com.