Custody Law in New York

Custody involves two separate concepts, legal custody and physical custody. A court can only award custody for children under 18 years of age.

Legal custody is the right to make important decisions about a child’s upbringing. Examples include choosing the school a child will attend, what kind of religious instruction the child receives, and medical decisions affecting the child. If joint legal custody is granted, the parents must make all decisions together, regardless of which parent has physical custody. However If legal custody is awarded to only one parent, that parent has the exclusive right to make all decisions on behalf of the child.

Physical custody is the right of a parent to have a child live with him or her. A court can award joint physical custody, in which case the child spends an equal amount of time living with each parent. More commonly a child is ordered to live a majority of the time with one parent, and the other parent is given visitation rights. Visitation can also be granted to grandparents and siblings.

A court will award custody based on its assessment of what is in the best interests of the children. A number of factors can be taken into account in deciding which parent should have custody, including the following:

  • Primary caretaker.
  • Quality of each parent's home environment.
  • Child care arrangements.
  • Each parent’s mental and physical health
  • Each parent’s fitness.
  • Parental cooperation.
  • Stability.
  • The child’s preference.
  • Keeping siblings together.
  • Abuse, neglect, abandonment or domestic violence.
  • Educational opportunities.
  • Substance abuse.

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