Child Custody in New York

Laws & Realities

New York’s most experienced matrimonial trial lawyer Dror Bikel focuses exclusively on high conflict divorces, complex asset divisions, and child custody disputes.

In this comprehensive video, Dror explains the most common issues relating to child custody in the State of New York and discusses some proven strategies to improve your chances of a successful outcome.

Bikel explains in simple words important concepts like Legal Custody (the ability to make important decisions in the child’s life: education, religion, medical care), Physical Custody (when the child lives with a parent), and Sole and Joint Custody.

Going over the factors judges take into account when they make Child Custody Decisions in NY, Bikel also refers to how the state's courts interpret the important 'best interest of the child' standard.

Dror’s landmark cases include exceptional outcomes for:

  • Monied and non-monied spouses in high-net-worth families
  • Celebrities concerned about personal brand value
  • Spouses and children with multi-national residences
  • Divorcing owners of unique or complex assets, including valuable art, antiques, luxury real estate, complex stock portfolios, and companies

Transcript of Child Custody in NY

Dror Bikel: This is Dror Bikel, and I'm going to talk about issues relating to child custody in New York. 

The first issue that must be addressed when dealing with child custody is the issue of legal custody.  

Legal custody is defined as the parent who has the authority to make decisions relating to a child's medical treatment, education, religion, and extracurricular activities. If both parents have this authority, then the parents have joint legal custody.

The second issue has to do with parenting time or time with the child. Parenting time is determined by counting the number of overnights over a two-week period. So, if one parent has eight overnights out of fourteen over a two-week period, then that parent has legal custody and is the child's primary caretaker. If both parents have seven overnights out of fourteen, then the parents have joint physical custody.  

Even if a parent does not have physical custody, that parent is likely still entitled to meaningful and frequent visits with the child. 

A frequent question asked is, "How is child custody determined?" Well, the parents may agree to a custody arrangement on their own without the involvement of the court system. However, if the parents cannot reach an agreement, then custody will be determined by a court as part of a divorce proceeding or a custody proceeding.

The next question is, "How does a court determine, with the child's best interests in mind, which party or which parent should have legal custody?" The courts often analyze who the child wants to live with, where the parents live, and how that may affect the child's education or medical treatment. The court may consider a criminal history, drug, and alcohol use, or other abusive behavior. 

The courts may consider a parent's physical, mental, and emotional health and ability to financially support the child. But most importantly is whether the parent's parenting skills match the emotional and physical needs of the child.

Another important issue is the question of, "How does child custody affect child support?" Well, under the New York Child Support Standards Act, the non-custodial parent must pay the custodial parent child support in an amount depending on the parents' combined income and depending on the amount of children.

If the parents share time with the child equally, if they both have an equal number of overnights over a two-week period, then the parent who earns more still pays the parent who earns less child support.

Another important question is the issue of "Who gets custody?" Well, in most cases, in almost all cases, the courts will grant either the mother or the father of the child the authority to make decisions relating to the child. The father is the person who is listed on the child's birth certificate and who has signed an Acknowledgement of Paternity or has received an Order of Affiliation from the court.  

Neither parent has a greater right to legal custody regardless of whether the parent is the mother or the father. They both are on equal footing in the eyes of the law.

There are extraordinary circumstances when it is in the child's best interest that the court grant custody to someone other than the child's parents. Siblings, half-siblings, and grandparents, do not automatically get visitation rights, but they may file a petition with the court seeking visitation if they wish to do so and if they are prevented from seeing the child by one of the parents.

Any parent or party who seeks legal custody or parenting time can file a custody or visitation petition in Family Court. The petition must explain the reasons why the party should receive custody or visitation. If a divorce is already pending, custody and visitation issues will be handled by the Supreme Court, which is the court that has jurisdiction over divorce issues. 

The parties attend court appearances and negotiate settlement negotiations. The court may issue temporary custody orders until negotiations are finalized. If there is no settlement during the litigation process, the case goes to trial, and the court will issue a custody and visitation decision at the conclusion of the trial.

If a custody or visitation award from the court already exists, it is possible to change that award if a party demonstrates what is known as a "substantial" change in circumstances since the time the last order was issued by the court. It's up to the court to decide what facts constitute a substantial change in circumstance.

Some examples of facts that do warrant a change in the custody order include intent to move to another location like a relocation of residency, emotional abuse or physical abuse, if one party is consistently violating the custody arrangement, a significant change in financial circumstances, and a decline in a parent's health. These are all examples of facts that may warrant a change in a custody and visitation order.  

If a party does not agree with a judge's decision, it is possible to change a decision through an appeal process, but the appeal process is expensive and time-consuming. 

Judges are assigned to cases randomly, and there are very few reasons why a judge will recuse himself or herself from a case. The most likely reason is a conflict of interest. If you simply don't like the judge, the best thing you can do is be respectful and keep your head down. Bumping up against the court or against a judge, arguing with a judge, will not help your case.  

If your judge has clearly made a grievous or legally incorrect decision, again, you can appeal to a higher court, but those appeals are rarely granted and are very difficult to win.

If one of the parents is not following a court order or a judicial decision, that can be hugely problematic. Some parents, after a court order, continue to interfere with a visitation or parenting time of the other parent, they may disparage a party to the child, alienate the child, move unilaterally with the child to another state or even country without permission, or abuse and neglect the child.

In the case of parental alienation, the court may order the child to attend therapy or spend more time with the alienated parent and may even remove or strike custody rights that one parent may have for engaging in alienating and other troubling behavior. The court may also grant a party emergency custody if there is an imminent danger to the child.

The best chance of achieving your goals in terms of obtaining custody is to communicate with your co-parent and keep all communications and negotiations civil. Support the rights and the relationship of the other parent. You're more likely to gain favor with the court if you are cooperative and follow court orders.

Keep a safe and adequate home with a bedroom for your child. Make sure you have a stable job and income so you can support your child. Maintain a nurturing relationship and a loving relationship with your child. And, obviously, stay away from criminal behavior and substance abuse as these are always issues that bump up against the court when the court decides custody.

If you are seeking custody of a child, it is imperative that you work with an experienced Family Law attorney. When choosing an attorney, look into the following factors. First and foremost, you must trust your attorney. Your attorney has to be on your side. Your attorney should understand and believe in your position, and he or she should do everything they can to obtain the best outcome for you.

Your attorney should also have significant experience in litigation and trial practice. That experience means that they will be prepared for any issue that may arise in your case. Your lawyer should have a reputation for integrity among clients, judges, and other attorneys. The court and opposing counsel will be more amenable to your position if your attorney is honest and reasonable in negotiations and in the court process.

Custody proceedings can be confusing and expensive, so you should hire an attorney who is transparent about how they bill you and how they handle your case. They should be willing to answer your questions and resolve your disputes amicably.