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Mark Gilmer, Esq.

Thursday, April 29, 2021

What are the types of Custody in New York? Written by a Brooklyn, New York City Custody and Visitation attorney.

As a New York City Family Court lawyer people often ask  me how many types of custody are there?  There are four types of custody in New York State. I will explain all of them in detail.

 

First of all it is important to note that you can apply for custody in either the Supreme Court of the State of New York or the Family Court of the State of New York. You would apply for custody in the Supreme Court if you are also simultaneously looking for a divorce. If you do not want a divorce but are living apart from the other parent then you could apply for custody in Family Court. Finally if you are not married and your name is on the birth certificate you can apply for custody in Family Court. If your name is not on the birth certificate you will first need to file a paternity proceeding in Family Court.

 

 

The first type of custody is sole physical custody. The person that has a child the most time will be considered the custodial parent. The court will determine who shall be the custodial parent based upon the best interests of the child. A typical parenting time arrangement in a situation where one parent has sole physical custody is that the non custodial parent will have the child every other weekend, for a midweek dinner visit, and will share legal holidays and and vacations with the custodial parent. This visitation schedule is not set in stone, individual case facts may lead to a different result  but as a Brooklyn, New York City Family Court Attorney,  my experience shows me that this is what a Court may award the parents after a custody trial is held. When filing papers with the court, I always advise parents who have been denied visitation and don’t get along with the other parent to ask for sole custody in the petition even if they just want visitation. This is a negotiation tactic. You ask for the most so you can get something in between, like joint custody.  Also applying for custody will show the other parent that you mean business and that you won’t tolerate the other parent keeping the child from you.  

 

There is also sole legal custody. Under these circumstances, the parent with sole legal custody has the right to make decisions concerning the child’s medical, educational, and religious needs. The custodial parent does not have to get the permission of the other parent to make these decisions, although they should certainly keep the noncustodial parent informed about decisions they are going to make regarding the child educational, medical and religious needs. The court will make an award of sole legal custody to the parent that proves it is in the best position to make major decisions for the child and that it is in the best interest of the child for this parent to make these decisions. In negotiating an agreement, if one parent is unwilling to give up sole legal custody, the other parent can try request that they be consulted prior to the custodial parent making any major decisions concerning the child. 

 

There is joint physical custody. This means that both parents will have equal parenting time with the child. The court generally will not award joint physical custody after a trial.  Joint physical custody has to be achieved by the agreement of both parties. It is important to know that for child support purposes the parent that makes more money is considered the noncustodial parent. This means you may have to pay child support, if you can’t get an agreement on child support with the other parent, if taken to a child support proceeding in court.

 

Finally there is joint legal custody. Joint legal custody means that neither parent can make a decision concerning the child’s medical, educational and religious needs without consent of the other parent. If the parents don’t agree then they will have to go back to court to litigate the issue that they disagree about.  It is imperative that if you are going to enter into a joint legal custody arrangement that you get along with the other parent and can make decisions with the other parent. Sometimes in joint legal custody agreements one parent is given the final decision making authority. This type of arrangement avoids the parents having to go to court to fight over every dispute they have about major decisions concerning the child. Another option is to have a third-party make a decision when both parents disagree. After a trial is very unlikely to be awarded joint legal custody because going to trial shows the court that the parents can’t get along. If the court determines that it is in the best interest of the child to award a joint legal custody arrangement it will do so.

 

It is important to note that during your custody proceedings you can request from the court a temporary order of custody or a temporary order of visitation. In the Supreme Court you would do this by filing a motion for Pendente Lite relief (meaning during the pendency of litigation). In Family Court you can make an oral application for it or file a motion for it. The court is unlikely to award a temporary order of custody without a full evidentiary hearing. There are some circumstances where a temporary order of custody is justified without a full hearing, for instance, when a parent needs to make a major decision regarding the child’s medical or educational needs but can’t do so without a temporary order of custody. On the other hand, the court is very happy to entertain a request for temporary visitation during the pendency of litigation.  This means you don’t have to wait until a final decision is made about visitation to see your child. The court would consider it in the best interest of the child to see you during the pendency of the litigation. Unless there are some child protective concerns or domestic violence issues the court is very likely to grant a temporary order of visitation. What the order will look like depends upon the circumstances.

 

If you are looking to apply for custody or visitation, please contact me a Brooklyn-based New York City custody and visitation attorney to get you what you deserve. 718-864-2011.


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