Negotiating Child Custody Without Court Involvement

In New York, courts can make orders regarding custody for minors under the age of 18. Courts make decisions based on the "best interest of the child," a complex legal concept that includes fostering a healthy relationship between the child and both parents.

When there is no court order, both parents have equal rights to legal, and physical custody of their children. Legal custody refers to important decisions about a child’s upbringing, including matters of medical care, choice of school, and religion. Physical custody has to do with physical care and supervision. When one parent has physical custody, the child lives with them more than 50 percent of the time, and the other parent has visitation.

If you are recently separated, and there is no custody order, you can either negotiate privately, file a custody petition, or resort to mediation. Even if your relationship with your former spouse is amicable, things may change in the future, for example, if they start a new relationship. For this reason, it is important to have a legal custody agreement in place, to avoid ambiguities and misunderstandings.

Who Has Custody of The Child if There Is No Court Order?

When there is no court order, custody is shared, meaning both parents have equal rights in terms of physical and legal custody. This can be quite problematic if the parents do not see eye to eye on various key issues. Maybe one wants the kids to go to private school, and the other one wants to send them to public school. Perhaps they want them to grow up with different religions. In most cases, people will look to resolve the custody issue either privately or in court.

Some states have 50/50 custody by default, but New York is not one of them. This means that the courts, arbitrators, or the parents themselves must decide who has physical custody and who has legal custody.

Married vs. Unmarried Parents

If a married couple has children, they have joint, 50/50 legal and physical custody of the minors. If they are separated and cannot agree on where the children will live or any other important matter about their upbringing, one of them must file for divorce or file a custody action. Alternatively, they can opt for mediation.

When an unmarried couple has children, the mother has full custody unless a court orders otherwise. In order for courts to change the custody arrangement, paternity must be established first. This may simply involve having both parents sign an acknowledgment of paternity. Under certain circumstances, however, it may require a DNA test.

Not everyone is aware that unmarried mothers have sole custody. In these cases, if the father takes the child away without the mother´s permission or makes important decisions about the child´s upbringing without the mother´s consent, he is incurring a violation, and the mother has a right to involve law enforcement.

How to Negotiate Custody Out of Court

There are many reasons to opt for negotiating custody out of court. Perhaps you have a great relationship with your former spouse, and you really don´t need to involve a judge; you can work out the details amicably, and you only need a lawyer to finalize the arrangement.

Some people opt for mediation because they think they can find some common ground and because it is usually much cheaper than going to court. Sometimes, mediation is the first hopeful step; one of the parents, or both, is optimistic about reaching an agreement, at least in the beginning. Then, if mediation fails, it is time for litigation.

Resolving Child Custody Through Private Negotiations

Strictly speaking, you don´t need a judge or attorneys to resolve a custody issue. Parents who have a civil relationship may be able to draft a parenting plan on their own and have it later validated by the court. However, attorneys should always oversee these types of agreements to avoid ambiguities in the text or errors that could lead to unwanted conflict in the future.

How Does Mediation Work in New York Custody Cases?

Mediation involves appointing a neutral third party who will try to facilitate an agreement about child custody issues.

Sometimes, halfway through litigation, the parties realize they can sort out certain issues through mediation. It can also happen that halfway through mediation, they realize they can agree on certain aspects of custody, but they will still have to litigate certain key issues.

Mediation is viewed more positively than a court dispute because it does not pit the parents against each other. On the other hand, when parents come up with the custody arrangement and visitation schedule by themselves, they are more likely to obey them.

Child custody discussions can require many mediation sessions where the mediator helps the parents find some common ground. Mediation can be child-inclusive, where the opinions of children, as reported by a specialist who interviews them, are taken into account.

Mediators get paid by the hour, and a retainer is usually required. The cost is typically split between both parents, and low-income families can apply for aid from various organizations.

Using Arbitration to Resolve New York Custody Disputes

Parents can also opt for arbitration to determine who gets custody of their children. In this case, they appoint a neutral party to act as arbitrators. The process of arbitration is similar to that of a court hearing, with the arbitrator playing a similar role to a judge. In some cases, the arbitrator can be a religious leader who will often make decisions based on religious customs; for example, according to Islam, the father should always get custody following divorce. But a court that believes an arbitrator´s decision is not in the children’s best interest can easily overturn it. For example, an Islamic arbitrator’s decision to grant custody to an abusive father will likely be overturned.

Opting for a Collaborative Law Approach

An interesting alternative to mediation and arbitration is adopting a collaborative law approach where a group of professionals, including financial advisors, psychologists, and attorneys, have a series of meetings with the parents to find the best solution for the family.

The attorneys representing each party in these meetings are trained in collaborative law. Their approach is often quite different from that of divorce attorneys fighting aggressively in court, and the aim is not to win but to find the best custody arrangement and parenting plan for everyone involved.

This setting requires respectful communication throughout negotiations, and the parents sign a document saying they will behave properly at the beginning of sessions. A collaborative law solution will cost more than mediation because several professionals, including attorneys, have to be paid. If the approach fails and the case goes to court, the parties have to hire new lawyers specializing in court litigation.

Parent Coordinators

Conflicts between parents may arise even after a custody order has been issued. In these cases, it is not always necessary to go back to court. Sometimes, the court will appoint a parent coordinator to help parents sort out their issues.

For example, coordinators may become involved if one of the parents has failed to respect a court order or if a change in the parenting plan is needed and the parties cannot seem to agree on it. Fees for coordinators are similar to those for mediators.

Parent coordinators will have the best interest of the children at heart. Because they are summoned as soon as a problem arises, their involvement can often help de-escalate an argument before it becomes a conflict that requires litigation.

How Do New York Courts Decide Who Gets Custody

New York courts can decide on child custody if the child is under six months old and has always lived in the state, if the child is older and has lived in NY State over the last six months, and if there has been an emergency in the state where the child lives. They happen to be in New York, or if New York courts previously issued a custody order for the same child.

After establishing its authority to hear the case, the New York court will evaluate each parent´s lifestyle, their emotional and financial stability, their separate relationships with the child, whether they have criminal records or substance abuse problems, and whether there have been claims of domestic violence.

Children can have a say about where they want to live, but the courts will decide based on their best interests rather than their personal preference alone.

One of the key aspects of custody decisions has to do with the likelihood that the custodial parent will facilitate visitation and foster a healthy relationship between the child and the noncustodial parent. Courts will typically be more inclined to give custody to the parent who seems less vindictive and who they expect will not try to come between the other parent and the child.

There are many alternatives to going to court when trying to reach an agreement about child custody. Unfortunately, many parents find themselves in court after exhausting every possible alternative. This can be a waste of valuable resources. The most important thing is to be realistic about whether you can reach a collaborative agreement or undergo a successful mediation with the other party. In most cases, that is not possible, and you should go straight to litigation.

An experienced New York child custody attorney can advise you on the best course of action to resolve your custody case. Even if you don’t plan to litigate, they can recommend mediators, advise you on your legal options, and help you design an efficient parenting plan.


Karen Rosenthal

Karen B. Rosenthal is a partner and co-founder at matrimonial litigation firm Bikel Rosenthal & Schanfield LLP, where she brings 30 years of matrimonial law experience to bear in matters involving high-net-worth equitable distribution, contentious custody battles, and other high-stakes disputes. Certified as an Attorney for the Child and a frequent speaker on topics related to children going through high-conflict divorce, she has been recognized as a leading New York lawyer by Super Lawyers, Best Lawyers, and New York magazine.

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