Who gets custody of the children in a New York divorce?

If you and your spouse are able to come to agreement regarding custody of your children in the event of a separation or divorce, you can outline these terms in a custody agreement. This contract should provide a detailed outline of you how major decisions are to be made for your child and the parenting access, including what holidays, birthdays, vacations and other events the children would spend with each parent.

However, if you and your spouse are unable to agree about custody, you may have to involve the court to help you resolve your custody dispute. Some couples may also find mediation or collaborative law helpful to work out conflicts. If you still cannot come to agreement, the courts will make a final custody ruling based solely on the best interests of the child.

Here are the common factors considered:

• Primary Caregiver: Which parent has been the primary caregiver and has been more involved in the child’s daily life and upbringing.
• Parenting Skills: Each parent's ability to provide for the child's emotional and physical needs, including education, health care, and social development.
• Parental Health: The mental and physical health of each parent, and how it might affect their ability to care for the child.
• Parent-Child Relationship: The quality of the relationship between each parent and the child, including the emotional bond and level of attachment.
• Stability: The stability of each parent's home environment, including the availability of extended family and community support.
• Financial Stability: Each parent’s financial stability and ability to provide for the child's needs.
• Work Schedules: The work schedules and flexibility of each parent, and how they impact the ability to care for the child.
• Cooperation: Each parent's willingness to foster a positive relationship between the child and the other parent, including co-parenting abilities.
• Educational Needs: Consideration of the child’s educational needs and which parent is better positioned to meet them.
• Cultural and Religious Considerations: The ability of each parent to maintain the child's cultural and religious upbringing.
• Child’s Preferences: Depending on the child’s age and maturity, their preferences may be considered.
• Siblings: The importance of keeping siblings together, maintaining sibling relationships.
• Domestic Violence: Any history of domestic violence, abuse, or neglect by either parent.
• Substance Abuse: Any history of substance abuse by either parent.

Today, many judges strive to award equitable joint custody when possible, to give each parent significant parenting time with their child.

The different types of child custody: Legal vs. Residential Custody

New York City courts grant two types of custody – legal and residential. They are different in nature and will not necessarily both be awarded to one parent. Legal custody means making the major decisions about a child’s education, health and religion.

Residential custody pertains to the schedule of when the children will be with each parent. The parent who has the child with him or her more nights than the other will be the parent with primary residential custody. The court will dictate the parenting schedule based on the best interests of the child (or children).

Who pays child support in NYC if we have joint child custody?

Even in joint custody situations, one parent still has to pay child support, as laid out by the New York Child Support Standards Act. Typically, the non-primary custodial parent pays support to the primary custodial parent. In cases where there’s an even split of time between both parents, the parent with the higher income is generally considered the non-custodial parent for the purposes of child support. Your New York divorce attorney can explain more.

Modifying your child custody agreement in New York

Your child custody order (as well as a child support or spousal maintenance order) can be changed. However, you must do it properly and legally. You may find, sometime down the road, that your child custody order no longer fits your or your child’s life circumstances. In cases like these, you may need to file for a child custody modification order. When you have a substantial change in life circumstances, consult with our lawyers at Berkman Bottger Newman & Schein LLP to find out the best options for your child.

Can my ex move out of the state with our child?

Depending on the terms of your child custody agreement, your ex-spouse may be in violation of your legal contract if they move out of state. Your divorce decree should have the terms of your custody agreement defined and, if one parent is planning a significant move, may need to be modified. If you or your ex-spouse want to relocate, contact your attorney as soon as possible.

Common reasons that may justify relocation include:

• Employment Opportunities: The custodial parent has a job offer or employment opportunity that improves their financial stability and overall well-being.
• Educational Opportunities: Access to better educational institutions or specialized educational programs for the child.
• Family Support: Moving closer to extended family who can provide support and assistance in raising the child.
• Living Conditions: Improved living conditions, such as moving to a safer neighborhood or a better housing situation.
• Health Reasons: Access to better healthcare facilities or treatment options for either the parent or the child.
• Quality of Life: Overall enhancement of quality of life, including social, cultural, or recreational opportunities that benefit the child.
• Remarriage or Relationship: The custodial parent’s remarriage or the establishment of a new relationship that promises a stable and supportive family environment.
• Safety Concerns: Moving away from an environment where there may be safety concerns, such as domestic violence or high crime rates.
• Financial Considerations: Lower cost of living in the new location, which can contribute to better financial stability.
• Special Needs: Availability of services or programs for a child with special needs that are not accessible in the current location.

Navigating Child Custody Amidst the COVID-19 Pandemic in NYC

Parents across the nation are currently grappling with how to handle parenting arrangements in such a radically changed world. Perhaps you live in a state or city that has instituted a “stay in place” order, as New York has. Perhaps you live with an elderly or immunocompromised relative, or are yourself at high risk if you contract COVID-19. How does this effect your current custody and parenting arrangements?

Each case is going to be different. With the New York courts currently limited only to emergency applications, guidance from judges may be difficult to obtain. Our family law attorneys are here for you in these uncertain times. We are staying abreast of all legal developments concerning coronavirus in New York. If you have questions or concerns about your custody arrangements, contact our firm. Our attorneys remain available for phone and video consultations, to answer your urgent questions about how to best protect and parent your children in this truly incredible time.

We invite you to read our attorneys’ thoughts on co-parenting, divorce, and other matrimonial and custodial issues:

• What to Do When Your Ex Uses Covid-19 as an Excuse to Ignore Your Custodial Arrangement. By Ellen Werfel Martineau
• Co-Parenting in Quarantine. By Abby Rosmarin
• Dealing with Parenting Time during Covid-19. By Jenny Budman
• The Bright Side of Quarantining - By Samantha Cooper
• What Can I Do to Prepare for My Divorce, Now That I Have the Time to Focus on It? - By Michael Fried
• Three Rules to Live by While Working From Home During a Quarantine Without Wanting to Divorce Your Spouse - By Kelly Kotliar