Custody & Visitation

When deciding custody, the principal that children are generally better off with two parents guides New York courts. Although it is understood that many couples in the process of divorce will have difficulty communicating on many issues, it is expected that parents who are divorcing will still make a special effort to communicate and cooperate on matters directly affecting their children. At all times, with regard to the child, regardless of any disputes that may exist between the parents, the court will attempt to make decisions regarding custody, visitation (access) and child support that are in the best interests of the child.

Joint Legal Custody

Divorcing parents should attempt to reach an agreement regarding child custody. Unless special circumstances exist, New York courts will favor joint legal custody. Joint legal custody means that both parents will together make major decisions affecting the child. This includes decisions on education, counseling and medical treatment.

In most cases where joint legal custody is awarded, after divorce, the child will reside with one parent more frequently than the other. The common situation is where the child resides with one parent during the week and the other on the weekend or every other weekend. The parent whom the child resides with most frequently is referred to as the primary residential parent. Although the child may reside with one parent during the week, midweek visitation with the other parent is still common. Joint custodial parents will usually split or alternate visitation on holidays and times when the child is off from school. Parents are, however, free to be flexible in reaching other agreements regarding custody and access to the child based upon work schedules, other obligations and lifestyle.

Obviously, joint custodial parents should expect to be in regular communication with each other regarding the child or children, in order to coordinate dropping off and picking up the child and to discuss major decisions affecting the child.

When Parents Disagree

If divorcing parents cannot reach an agreement on custody and visitation (visitation is also referred to as access), the New York court system will make the decision. A judge will generally appoint a law guardian or lawyer who will decide what is in the best interest of the child. In cases of disagreement over custody accusations are sometimes made between the parents as to fitness and what is in the child’s best interest. In these cases the judge might also appoint a mental health professional to perform an independent analysis of the family and make recommendations to the court as to what is in the child’s best interest in terms of custody.

For more information on custody & visitation, see our FAQ’s on Children and Divorce, or information on grandparents and non-parents seeking custody or visitation rights.