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There are two types of custody in the State of New York. Physical custody refers to the parent who has physical possession of the child. They’re expected to provide the child with direct care. Legal custody refers to which parent has the right to make significant decisions on behalf of the child.
Presumption of Joint Custody in New York
The Family Court in New York doesn’t start any child custody case with the assumption that joint custody is what’s best for a child. You should get a New York City joint custody lawyer so that you can make a well written request for joint custody. You’ll need to demonstrate tot he court why it’s in the best interests of the child to share custody with both parents.
In New York, the case of Trolf v. Trolf brought to light some situations where joint custody might be appropriate. It says that the court might award joint custody where the parents can get along reasonably well. They say to seek out any situations where the parents can be civil with one another and cooperate for the good of the children.
Disagreements between adults in a marriage shouldn’t prevent a qualified parent from having joint custody of their child. It doesn’t matter if the parents are amicable with each other or not. What is important is whether or not they can reasonably cooperate for the good of the children.
This type of custody determines where the child spends most of their time. A parent has primary physical custody when they have the bulk of the time with the child. A parent has joint physical custody when they share parenting time with the other parent equally or almost equally. Even if one parent has primary physical custody, the other parent usually has some parenting time.
When a parent has legal custody, they have the authority to make big decisions for the child. They decide where the child goes to school. They decide if the child should receive certain medical treatment.
When a child is in a parent’s direct care, it’s up to that parent to make the day to day decisions for a child. This includes what a child should eat, what they wear and routine discipline. Bigger decisions about a child’s upbringing are left to the parent with legal custody. If the parents have joint legal custody, they need to agree on these decisions.
No Presumption of Joint Custody
The State of New York has no presumption of joint custody. That is, judges who decide custody cases don’t have to first consider placing the child with both parents equally. That means, if you’re hoping for joint custody, it’s important to work with a NY joint custody lawyer in order to prove your case. The court needs to see the evidence and hear arguments about why joint custody is best for your child.
How Does the Court Decide?
When the court makes a decision about custody, they decide if the parents are going to be able to get along enough to make joint custody work. They also consider if the parents live close enough to each other in order to split the time effectively while a child goes to school or participates in other community activities. The court considers if there are any big reasons that one parent should have the majority of the parenting time such as domestic violence or a history of substance abuse.
Who Is Eligible to Petition for Custody of a Child in New York?
The mother and legal father of a child are both eligible to petition for custody of their child or children. “Legal father” is the term for a man who has either
- signed an Acknowledgement of Paternity,
- received an Order of Filiation from the court, or
- is listed as the father on the child’s birth certificate.
All of these documents establishes paternity. In other words, they verify that the man is the legal father of the child.
For children born under wedlock, there is a legal presumption that the husband of the child’s birth mother is also the child’s father.
In situations where a child is conceived through artificial insemination or in-vitro fertilization with the spouse’s written agreement, that paternity presumption also applies.
Because of a case decided during 2016, in some circumstances the domestic partner of the child’s birth or adoptive parent is able to establish parenting rights. This is true even if they were not married to the parent listed on the child’s birth certificate and never adopted the child.
Under whatever circumstances, neither of the parents has more of a right to custody than the other. If no custody order exists, either parent can keep the child.
Friends oft he family and other relatives of the child could also petition the court for custody. To do so, they must demonstrate that there are “extraordinary circumstances” that would give them the right to request custody in preference to either of the natural parents. So called “extraordinary circumstances” can include situations such as surrender by the parent, persistent neglect, abandonment, unfitness, or disruption of custody over an extended period. If they are able to demonstrate extraordinary circumstances, then they need to also demonstrate that it is in the best interest of the child for the non-parent to be awarded custody.
Who Can Be Allowed Visitation of a Child in New York?
Either one of a child’s parents, their siblings and half-siblings, and thier grandparents are allowed to petition for visitation. The court will come to a ruling as to whether visitation with the petitioner is in the child’s best interest. A child’s parent is entitled to frequent and meaningful visitation with them, unless it is proven in family court that it would somehow be harmful to the child.
For the most part, the courts honor joint custody schedules if the parents are able to agree. The court can disagree if they feel it’s not in the child’s best interests, but this is rare. This means that you can work with your NY joint custody lawyer in order to approach the other parent about creating a joint custody agreement. Although this might seem impossible, your NY joint custody attorneys are trained professionals. We have the skill and experience to help you both prepare your case for court and approach the other side for a non-trial resolution.
Work With Us
We know that it’s important for a child to have a strong relationship with both of their parents. That’s why we take pride in helping good parents fight for joint custody. Every case is unique, but it’s important to us to help you advocate for your child’s best interests to the fullest extent of New York law. Contact us today, and we can begin working on your case.