No area of family law is as sensitive and emotionally charged as determining custody of children. Decisions made by parents, or by the court regarding the custody of children will directly affect their future and their well being. In New York State, there are two types of custody, namely “physical” or residential custody, which involves with which parent the children will primarily reside, and “legal custody” which means which parent will make major decisions in the child’s life. Major decisions are usually decisions relating to the health, education and religion of the child.
“Sole” or “primary” physical custody is when the child lives with one parent, with the other parent enjoying ”parenting time” (visitation). “Shared” physical custody is when the child lives with each parent an equal amount of time. ”Sole” legal custody is where one parent has the legal right to make major decisions in the life of their child, while “joint” legal custody is where both parents consult and agree on major decisions affecting their children.
It is almost always preferable for parents to resolve the issue of custody without court intervention, however often parents have widely diverse views on which one of them should enjoy custody of their children and agreement cannot be reached. If parents cannot arrive at a custodial arrangement, the Court will render a determination on the primary residence of the children, how major decisions are made in the children’s lives, and determine the access the “non custodial” parent will have with his or her children. Should a court determine custody, it will base their determination on the “best interests” of the children. Often the court will appoint an attorney for the children (commonly referred to as a “Law Guardian”) to advocate on their behalf and in some cases, also appoint a forensic psychologist to assist the court in resolving this issue. It is important to remember that courts rarely order “joint” legal custody, and even more rare is where a court orders ”shared” physical custody.
It is important that you have guidance from an attorney who is experienced, creative and skilled in negotiating custody agreements, or if an agreement cannot be reached, one who is experienced in working with forensic psychologists and law guardians. Mistakes can have devastating effects on your custody case as well as the future of your children.
Should you require the assistance of a skilled, experienced and creative attorney to help resolve your custody dispute, please contact Michael A. Cohen at 516-280-6806 for a free consultation.