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New York, NY Divorce Lawyer Dror Bikel of Bikel and Schanfield Looks at New York Child Custody Legal Rules and the Practical Realities around Physical and Legal Custody in New York Divorces

Transcript of Bikel and Schanfield video on child custody agreements and disputes under New York law.

Disputes involving child custody are often the most difficult part of a divorce.  These disputes are the most emotional, they’re the most gut wrenching, and they’re the most upsetting part of separating from your spouse.

It’s important to understand before engaging in a high-conflict child custody dispute, which is long, expensive, and incredible intrusive - it’s important to understand what the term “child custody” actually means.

Child Custody: Legal Custody vs Physical Custody

That term can be broken down into two parts:

  • Part 1 is what’s called “legal custody,” and
  • Part 2 is what’s called “physical custody.” 

Let’s start with Part 1, Legal Custody.

Legal custody means having the authority to make decisions about a child’s health and medical treatment, education, and religious practice.  It also means having the authority to make decisions regarding a child’s extracurricular activities and choice of summer camp, as well.

In the event that the parents who believe that they shall have joint legal custody, that means that the parents have the authority to make these decisions together, post-divorce.

Let’s look at examples of what a child custody dispute would look like.

Legal Custody and Medical Decision Making

Let’s start with the area of medical decision making.  Assume that a 10-year-old child is being treated by a psychiatrist and that one of the parents wants the child to be prescribed Zoloft as recommended by the pediatrician.  Let’s say that that parent reports to the pediatrician that the child is overly anxious and nervous and, as a result, the pediatrician sets forth a treatment plan that involves low dosages of Zoloft.

Zoloft is an anti-anxiety medication that treats people and children with high levels of anxiety.

Let’s say, the other parent is very much against the child taking Zoloft.  That parent agrees that the child suffers from some anxiety but thinks that if the parents can only resolve the divorce, then the child’s anxiety would be greatly reduced.  That parent is also very concerned about the side effects of Zoloft which may include jitteriness and the loss of ability to concentrate.

So, in this example, you have two parents who disagree on whether a child should be prescribed Zoloft.

The parent who has legal custody is the parent who has the authority to make the decision on whether the child will take Zoloft or not.  That parent is the tie breaker.  That parent has legal custody.  If the parents have joint legal custody, then post-divorce, they have to find a way to make that decision together.

Let’s look at a second example of a child type custody dispute, and let’s look at the area of educational decision making.

Education Decisions and Legal Custody

Let’s say, the child has some challenges including an expressive receptive disorder.  And one parent wants to send the child to a school that specializes in treating children with special needs.

Let’s say, the other parent doesn’t agree.  That parent believes that any issue the child may have can be addressed by extra tutoring and is concerned that sending the child to a school that specializes in children with special needs will unduly stigmatize that child as being problematic.  And, that parent wants to send the child just to a mainstream public school.

So, here you have a dispute.

Again, you have one parent who wants a special needs school and another parent who wants to mainstream the child.  And, again, the parent who has legal custody is the tie breaker.  That parent has the authority to make the decision on whether the child will be mainstreamed or attend a school that specializes in treating children with special needs. 

If the parents have joint legal custody, again, post-divorce, they’re going to have to communicate and cooperate, and make this decision together.

Religious Practice Decisions and Legal Custody

The last example I will give is in the area of religious practice.  Let’s say, the parents have identified with two different religions.  It’s an inter-marriage, and one parent wants the child to be confirmed, and the other parent is Jewish and wants the child to undergo a Bat Mitzvah.

Again, there’s a dispute, and the parent who has the authority, who has legal custody, will have the authority to decide whether the child will undergo a confirmation or a Bat Mitzvah.  And, again, if the parents have joint legal custody, they would have to make that decision together, post-divorce.

Let’s look at Part 2 of what the term “custody” means.

Physical Custody, Shared Parenting & Schedules

Physical custody, or what’s known as “parenting time,” that is defined as “time with the child,” how much time each parent is spending with the child.  And, the courts generally define that as by counting overnights with the child during a two-week period.

So, if one parent has 8 out of 14 overnights, and the other parent has 6 out of 14 overnights, then, the parent who has 8 out of 14 overnights has physical custody of the child because that parent is the parent with whom the child spends the majority of overnights.  If each parent has 7 out of 14 overnights, then it’s a shared parenting schedule because they have an equal number of overnights with the child, and neither parent has physical custody.

A typical example of what a shared parenting schedule would look like would be if one parent has every Monday and Tuesday night with the child, and the other parent has every Wednesday and Thursday night with the child, and then the parents alternate Friday night to Monday morning.  So, on one weekend, one parent would have Friday to Monday morning, and on the next weekend, the other parent would have Friday to Monday morning.

That schedule, which I just outlined, is a shared parenting schedule.

There are important financial implications relating to the issue of which parent has physical custody and which parent does not, and these financial implications are beyond the scope of this audio.  But, they must be considered in conjunction when deciding the overnight schedule.

I hope that this audio has given you some insight into what the term “child custody” actually means and, of course, if you have any more questions, or if you’re involved in a child custody dispute, or if you think you may be involved with one, please feel free to contact us.  We are happy to help you.  Thank you.

Dror Bikel is a leading New York matrimonial and family lawyer with more than two decades’ experience in difficult or complex child custody disputes, high conflict divorce, and all manner of high conflict matrimonial trial work. 212.682.6222