Custody Basics

Joint custody means both parents will have a voice in decision-making involving the child, but does not necessarily imply equal time with both parents.

Sole custody reserves decision-making for one parent, with the other having specific, enforceable visitation rights, but more limited decision-making input.

In determining custody, the court can award joint custody or sole custody. Joint custody primarily involves joint decision making of the parties and does not necessarily mean that the parties will share the children on an equal basis. Joint custody is properly granted where the parties can demonstrate that they are capable of placing the interest of the child above their own needs. On the other hand, sole custody involves decision-making by the custodial parent.

Although New York courts are not generally willing to grant joint custody in a heavily contested matter, the real differences between joint and sole custody are presently far less than in previous years as a result of the courts providing the non-primary residential parent with significant input to medical and educational information on behalf of the children as well as providing that parent access to extracurricular activities and other day-to-day involvement with the children.

In a contested matter, the court is likely to appoints a lawyer to represent the child or children, who previously was known as a “law guardian.” Depending upon the resources of the parties, this attorney may be paid by the parties in addition to their payment of their own attorneys. The role of the attorney for the child is important in protecting the interests of the children and in making recommendations to the court.

Under some circumstances, the court may determine that it is appropriate to divide decision-making authority with respect to the children. Wideman v. Wideman, 38 A.D.3d 1318 (4th Dept. 2007). The essential consideration in custody determinations is the child’s best interest, given totality of the circumstances.

In Wideman v. Wideman, the Appellate Division upheld the lower court’s award of joint custody to the parties despite a well-established record of acrimony between the parties and the prediction of the parties and the experts that the parties would not be able to agree on decisions involving the children. The lower court’s decision to divide the decisions involving the children between the parents was held to be a sound one. The mother was granted decision making authority with respect to religion, finances, counseling/therapy, and summer activities; the father was given decision making authority with respect to education, medical/dental care, and extracurricular activities.

The factors that the court considers in making its decision include: parental guidance by custodial parent, each parent’s ability to provide for the child’s emotional and intellectual development, ability to provide for the child financially, relative fitness, stability of the household, willingness to foster relationship with non-custodial parent, and the effect an award of custody to one parent may have on other parent and child’s relationship.

Shared custody typically refers to the way the parents can agree on how to divide time between two homes and demonstrate the ability to cooperate.

Split custody is a situation involving more than one child, where one child’s primary residence is with one parent and another child’s is with the other parent. While there should be a reluctance in separating siblings, it can be done where the best interest of each child lies with a separate parent.

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