How Child Custody Works In New York: Part One
Child custody is an issue central to many divorces, but may also be navigated in the family court system for those not ready to divorce or who have never been married. The process of addressing, settling and scheduling hearings or trials for child custody matters differs between the New York Supreme Courts and the New York Family Courts. Today, we break down the way those proceedings generally play out and what the Judges and jurists consider when requested to aid parents in reaching a child custody resolution.
Child Custody in New York Supreme Courts
When parties file a divorce action and appear in the New York Supreme Court they are tasked with submitting a preliminary conference order, which outlines the issues of the divorce. Within this preliminary conference form the parties have the option to check the boxes stating that physical and legal custody of the child(ren) have been resolved or that they require court intervention. The Supreme Court will allow a limited amount of time for the parties, through their attorneys, to try and work through those issues before stepping in. In the event that the parties cannot reach an agreement, the court will move forward with appointing an attorney to represent the children. The parties, their attorneys and the attorney for the children will then attempt to work through the issues until they reach a resolution or the issue is set down for a hearing.
Child Custody in New York Family Courts
When an application for child custody is filed in the Family Court it often signifies that the parties cannot reach an agreement. Depending upon the age and maturity of the child(ren), an attorney will be appointed for the children on the first court appearance. Just like in the New York Supreme Court, the Family Court will schedule a few court appearances to aid in the process toward settlement and if no resolution can be reached, the matter will eventually be set down for hearing.
Through it’s staff, appointed counsel and the parties’ attorneys, the New York Courts impart the position that it is always best for the parents to reach an agreement regarding child custody. After all, it will be the first of many decisions and compromises that the parents will have to make on behalf of the children now that they are no longer an intact family. Regardless of the child custody terms these parents reach, they will have to co-parent these children for the foreseeable future and seeing their parents act civilly and reach agreements on their behalf benefit the growth and wellbeing of the children.
New York’s Child Custody is Two-Fold
Child custody in the state of New York involves the physical custody of the child(ren) - the children’s primary place of residence - and the legal custody of the child(ren) - who makes major decisions on behalf of the children. In order to determine both physical and legal custody, the New York Courts focus on the best interest of the children and expect that the parties put those interests above all else.
Physical Custody of the Child(ren)
When it comes to the physical custody of the children, the New York Courts want the parents to reach a liberal parenting time schedule that allows the children to have meaningful time with both of their parents. If the parent’s work schedules and physical distance allows, the court is moving toward the preference that this schedule be as close to a split schedule as possible. The most important focus is making sure that the children can get to and from their school and activities without significant difficulty.
What Does Shared Physical Custody Look Like?
A shared physical custody arrangement means that the parties have a 50/50 split of the children’s time. This could mean that the children alternate their time week-to-week with each parent or that they operate on a “2-2-5” schedule, in which the children would spend Monday and Tuesday with one parent, Wednesday and Thursday with the other and would alternate the weekends each week.
What Does a Liberal Parenting Time Schedule Look Like?
An exact 50/50 parenting schedule is not always possible where it would create complexities in the child’s schedule. But, that doesn’t mean that visits should not be liberal. Most every parenting schedule allows for alternate weekend visits, from Friday after school to Sunday evening. Where parents are able to get the children to and from school, it is now common that those alternate weekend visits extend to a drop off at school on Monday morning. In these circumstances, the New York Courts prefer that there also be some weekday contact. After all, an alternate weekend schedule means that the children would go without seeing the noncustodial parent for another eleven days. As such, the courts also want to see a midweek visit. If an overnight is possible and not disruptive to the children it’s always a good idea. However, if it would disrupt the children’s education the courts will generally push for a “dinner visit.”
Aside from the physical visits, the New York Courts also expect that the children maintain meaningful and regular communication with each parent. Regardless of the parenting time schedule, each parent should be entitled to a brief phone call or facetime communication with the children every day that they are not physically with the children outside the presence of the other parent. As the children get older and have access to cell phones, both parents should encourage regular communication between parent and children.
What About Holidays and School Breaks?
Regardless of how liberal the parenting time schedule, the New York Courts prefer that all holidays and school breaks be divided equally between the parents. Unfortunately, this is not always realistic, depending upon the parent’s work schedules.
When it comes to major holidays, so long as the parents are available, the children should see the parent’s equally. For example, Thanksgiving may be divided with one parent to have Thanksgiving Day, while the other parent has the Friday thereafter with the parties to alternate on an odd/even year basis. The parties may also agree that the Thanksgiving holiday includes the Wednesday after school until the Sunday, allowing parents to travel and visit out-of-town relatives for the holiday. As such, the parents would alternate the entire long weekend on an odd/even year basis. The same would apply for any other major holidays that the family celebrates. School breaks, like winter recess and spring break may be divided in half by the parents or alternated on an odd/even year basis by the parties, allowing them to travel with the children. Some holidays are always designated to one specific parent, such as Mother’s Day, Father’s Day or a parents birthday. Regarding the child’s birthday, each parent should be entitled to some time on that day to celebrate with the child and their siblings.
During summer breaks, each party may be entitled to four weeks of time, depending upon the parent’s work schedule and the children’s camp schedule. At minimum, each parent should be entitled to two weeks of uninterrupted vacation time during the summer months with the children. Whether it be two weeks or four weeks, the parents can decide whether those weeks would be consecutive, or would be split up throughout the summer. For example, each party may have one or two weeks in the month of July and in the month of August or the parties may agree that one parent has the entire month of July and the other parent has the entire month of August, all based upon the best interests of the children.
How Do Holidays/School Breaks Affect the Normal Parenting Time Schedule?
Holidays and school breaks supersede the normal parenting time schedule. This means that it takes first priority. Let’s say the parties alternate weekends and the upcoming weekend is the Mother’s regularly scheduled parenting time. However, it is also Thanksgiving weekend, which is the Father’s holiday this year. The Father’s holiday visit takes precedence over the Mother’s alternate weekend. Unless the agreement provides otherwise, no makeup time will be provided. Rather, the normal parenting time schedule will pick up where it left off.
Stay tuned for Part Two, which will address Legal Custody of the Children.