An Overview of Physical and Legal Custody in New York

Mother and child smile at each other

In New York, custody may be decided in either the Supreme Court or Family Court. In making a custody determination in New York, the court’s paramount consideration is the best interests of the child. Relevant factors that must be considered by the court in determining a child’s best interests include the quality of the parents’ respective home environments, the need for stability in the child’s life, each parent’s willingness to promote a positive relationship between the child and the other parent and each parent’s past performance, relative fitness and ability to provide for the child’s intellectual and emotional development and overall well-being. At a trial on the issue of custody, the judge is afforded deference and discretion in evaluating witness credibility and weighing the evidence. So long as there is a sound and substantial basis for it’s determination in the record, the appellate court will uphold the trial court’s ruling on custody related matters. See Matter of Shirreece AA. v. Matthew BB., 166 AD3d 1419 (2018); see also Hassan v. Barakat, 171 AD3d 1371, 1373 (2019).

In New York, there are two facets of custody that trial courts are tasked with deciding during a custody proceeding – physical custody and legal custody. Physical custody involves where the child lives. Legal custody provides for decision making authority over things like education and health care.

When deciding physical custody, the Court will set a custody and access schedule. In doing so, the Court will divide the time between the parties based on the best interests of the child. Whichever party the Court gives more time with the child will be deemed to be the primary physical custodial parent for child support purposes. But, often times, its not entirely clear which parent has more time with the child. In the First Department in New York, the primary custodial parent designation may be based on the number of nights with the child as opposed to number of waking hours with the child. See Rubin v. Della Salla, 107 A.D.3d 60, 68 (1st Dep’t 2013). For example, where one parent has the child for four (4) nights and the other parent has the child for three (3) nights each week, the parent with 4 nights with the child may be deemed primary physical custodian even if the number of hours that each parent spend with the child are exactly the same or slightly favor the parent with less nights. However, all primary custody designations are still subject to an analysis of "the reality of the situation," including cases where one parent has more overnights than the other. 

In some cases, the Court may grant equal time to both parents. In a truly equal time split, neither party can claim to be primary physical custodian. But for child support purposes, a primary physical custodian must be established. New York Courts have determined that in cases involving truly equal parenting time, the parent with the superior income or the “more monied” spouse will be deemed the non-custodial parent for child support purposes whereas the “less monied” spoused will be deemed the primary custodial parent for child support purposes. See Rubin, 107 A.D.3d 60, 68 (1st Dept. 2013); see also Baraby v. Baraby, 250 A.D.2d 201, 203 (3rd Dept. 1998).

Legal custody involves the authority of a parent to make major decisions, including the education, religion and health of the child. The Court may decide that one parent is the sole legal custodial parent or that the parents have joint legal custody where both parents share in decision making as instructed by the Court. Although joint legal custody is encouraged as a voluntary alternative, it is appropriate only in cases where the parties involved are relatively stable, amicable parents who can behave in a mature, civilized fashion. See Braiman v. Braiman, 44 N.Y.2d 584 (1978); see also Matter of Timothy M. v. Laura A.K., 204 A.D.2d 325, 325-326 (2nd Dept. 1994). Although the Court of Appeals decision in Braiman remains the leading authority on joint custody in New York, one of the more significant changes in the area of New York custody law in recent years is the increasing use, in both agreements between parents and in court decisions, of joint custody, or shared decision-making, as a viable custodial arrangement. See Tatum v. Simmons, 133 A.D.3d 550 (1st Dept. 2015); see also Matter of Batista v. Falcon, 148 A.D.3d 698 (2nd Dept. 2017). Further, the courts have come to the realization that allocating spheres of decision-making between parents, in order to take advantage of the parents’ respective strengths and abilities in particular dimensions of child-rearing, may be appropriate in some circumstances, especially to assure that both parents have meaningful roles in the child’s life. See Matter of Johanys M. v. Eddy A., 2014 NY Slip Op 01534 (1st Dept. 2014). But to be clear, New York Appellate Courts remain reluctant to Order joint custody absent an agreement or a showing that the parents work well together.

In many cases, joint legal custody is not a practical option. But even in cases where sole legal custody is awarded to one parent, the non-custodial parent is often granted rights of meaningful consultation on major decisions. In addition, if the non-custodial parent is to be financially responsible for major expenses, such as private school or non-emergency medical treatments, the non-custodial parent is often given the right to consent, or to withhold consent, to the expense, as long as the non-custodial parent acts reasonably.

If you’re involved in or plan to initiate a custody proceeding in New York, contact William F. Guilford today to discuss how to best protect your parental rights.

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