Our child custody lawyer in New York answers frequently asked questions that we receive from new clients. We understand why there are so many questions, too, because there's a lot of misinformation about child custody. Plus, each state law varies significantly or subtly on child custody. We are here to dispel the misinformation, clarify misunderstandings, and provide the right information so you can make smart, informed decisions about your child and your unique situation. New York courts also want to do their part to make sure that parents get quality time with their children because both parents, absent a valid reason like serious abuse, should be able to develop strong bonds with their children. When it comes to allocating time with a child, however, it can become a difficult, emotional experience. Who gets the child when and where can be a contentious issue, and that's why parenting plans are useful. In fact, most states require them now. 

If you still have questions or want more specific information about your child custody matter, contact O'Brien Monagan Law Firm P.C. today either by using our online form or calling us directly at 518-427-7000.

What is the most common child custody arrangement in New York?

Child custody arrangements vary from family to family and state to state. There are several arrangements that are more popular than others, including legal custody, physical custody, sole custody, joint legal custody, and sole legal custody. Of these, joint legal custody is the most common custody arrangement. This is where both parents are involved in the decisions regarding how their child is raised. 

If we were never married, do I still need a custody order in New York?

The answer to this question depends on your end goal. If you are seeking to establish any rights to the child, including custody, visitation, or child support, paternity does need to be confirmed. Most states hold that when a child is born out of wedlock, the mother has sole custody unless a court has held otherwise in an order. 

How is child custody determined in New York?

In most states and most situations, when the parents of a child are able to agree on a child custody arrangement, the court will issue an order that confirms the terms of the agreement. When the parties are unable to reach an agreement on their own, they may have to attend mediation or arbitration to see if that helps. When all else fails, the court will hear the matter and issue an order the parties must abide by. The court will make its custody decision by determining what specific terms are in the best interests of the child. The court will examine how each parent meets the child's mental, emotional, psychological, medical, educational, and nutritional needs. Each case is decided based on its own unique set of facts and circumstances. Factors taken into consideration by the court include the following: the amount of time each parent spends with the child; attendance at parent-teacher conferences and doctor appointments; homework completion; bedtime routine; bathing; feeding; meal preparation; and emotional closeness. In a majority of custody cases, there will be some type of shared decision making and physical custody.

Can I modify Custody?

You can modify a custody order in New York if you can establish that there has been a substantial change in circumstances since the last custody order was made. What is considered substantial is up to the court to decide. If you can show sufficient evidence of a substantial change in circumstances, then the court will review the new situation and make a modified custody order, applying the same standard as before: the best interests of the child.

What's the difference between legal and physical custody?

When a parent has physical custody, they actually have the physical child placed with them. This is the parent that lives with the child and takes care of their everyday needs. One parent may have primary physical custody while the other has secondary physical custody.

A parent who has legal custody is the one allowed to make important decisions about the child, including decisions regarding the child's medical care, education, and religious upbringing. Joint legal custody may be awarded to both parents so that they both have input in making these important decisions for their child.  

Does custody primarily go to one parent in New York?

This is an incorrect assumption many people make. The answer is “no.” The truth is that courts often award other types of custody arrangements, such as joint physical custody, joint legal custody, or a combination of both. Some states do require a primary custodian, though, but that does not mean one parent gets full custody.

The courts always consider the evidence and the best interest of the child to be of paramount concern. 

Do I need a child custody lawyer in New York?

It's really up to you if you want a child custody lawyer. As for needing one, that depends on what is meant by that. Child custody laws are nuanced yet stringent. Mistakes are not affordable because the custody of your child is at stake. 

In many cases, parents mutually agree on child custody arrangements, and so that makes the matter easier. In some of those cases, though, a parent may have felt compelled to agree, and so having a family law attorney advise you on what's fair (or not) is beneficial. In contentious situations, a child custody lawyer is highly recommended. It takes skills, knowledge, and a lot of perseverance to make sure the child custody arrangement approved or ordered by the court is fair and just and reflects what you had anticipated.

New York Parenting Plans

A parenting plan is a guide instructing when each parent has custody or visitation of a child (among other things) entered into by agreement by the parents, or if the parents cannot agree, ordered by a court. It states how much time each parent gets to spend with the child and when that time will occur. In some states, it is known as a custody agreement or child allocation. 

Parenting plans are a good idea for any situation where the parents of a child are not in a relationship, but both want to be involved in their child's life. Even if two parents are able to get along, it is best to have a parenting plan in place for any disagreements that may arise in the future. 

Factors to Consider When Making a Parenting Plan in New York

A well-crafted parenting plan addresses any foreseeable situation that may arise. It allows both parents to be involved with their child and to know when they can expect to spend time with their child. While many plans are similar, every situation is different and the parenting plan should address any unique conditions. Common matters to consider are listed below.

The Child's Needs & Age

Younger children and children with special needs will demand more consideration and work than older children and children without special needs. This should be taken into account when creating a parenting plan. 

Some children do well going between two different houses while others do not. This should be taken into account as well. 

Physical Distance Between the Parents

A parenting plan between two parents that live in the same town will likely look very different from a parenting plan where the parents live on different coasts. The amount of distance and the time it takes to exchange the child should both be considered. 

Distance is important because it may mean the child will have to fly, and if so, parents may have to decide who flies with the child or if the child can fly unaccompanied. More issues exist and must be addressed when the parents are not located near one another. 

Primary Caretaker and Work Schedule of the Parents

When one parent has consistently been the primary caretaker of the child, it may be more difficult for the child, especially when they are younger, to spend a significant amount of time away from that parent. It is best to avoid big changes to a child's routine, as they may not adjust well. 

The work schedule of both parents should be considered when creating a parenting plan. Some parents have work schedules that make it difficult for them to be involved in the day-to-day care of their child. They may also travel often or, if in the military, may be stationed abroad, making it difficult for them to know when they will be available. 

History of Abuse

Does one of the parents have a history of being physically or emotionally abusive? Have there been allegations of domestic violence? Or, do they live with someone who is abusive? The safety of the child is paramount, and if abuse of any type is suspected, it may be in the best interest of the child that the visitation is supervised. 

Under the umbrella of abuse, you may want to consider any chemical substance abuse issues, too. Is one parent an alcoholic or addicted to any type of drug, prescription or otherwise? This is important information that must be considered and proven if allegations are made. We strongly advise against any false allegations in the hopes of getting sole custody of a child.

Child's Preference

Every child is different, and their age and their ability to make important decisions should be considered when they want to have a say in the parenting plan. If they are older, it is a good idea to listen to their preferences. That said, many jurisdictions allow a child at a certain age to choose which parent they spend most of their time with.

Holidays & School Breaks

Parenting plans should address with whom the child spends the holidays (e.g., Christmas, New Year's Eve, Thanksgiving, Labor Day weekend, etc.) and extended breaks (e.g., spring break or summer). It may be that alternating holidays is a good idea, or if you live near one another, splitting holidays in half. 

Child's Education & Extracurricular Activities

Children often have busy schedules involving school, homework, sports, and other extracurricular activities. Are both parents supportive of the child's schedule and willing to ensure the child is able to attend meetings and practices? What impact does the child's schedule have on the ability of the parents to exchange the child mid-week? The parenting schedule should take these matters into consideration.

How Do I Change a Parenting Plan in New York?

Parenting plans are generally court-ordered, and as such, cannot be unilaterally changed. When one or both parents request a change in the parenting plan, the court will first consider what is in the best interest of the child. Although it varies by jurisdiction, many courts only modify orders when there has been a significant change in circumstances, such as a change in one parent's ability to care for the child. Other states will only consider a modification if it has been a certain amount of time since the order was entered. Still, other states will allow children to choose who they will live with once they reach a certain age. 

To find out what is needed to change a parenting plan in your jurisdiction, it is best to speak to a family law attorney in New York. 

Do We Need a Parenting Plan if We Live in Different States?

Yes, a parenting plan is necessary even when parents live in different states. One state will have jurisdiction over the parenting plan although more than one state may meet the necessary criteria to have jurisdiction. In cases where more than one state could have jurisdiction, the state where a petition for custody is first filed is the state that will most usually have jurisdiction. 

Parenting plans can be construed to address the unique circumstances that arise when the parents live in two different states. They may even restrict the ability of one parent to move the child without the permission of the other parent. The parenting plan will need to adhere to the guidelines of the state that has jurisdiction. 

Do I Need a Parenting Plan During the Divorce Process?

Parenting plans are useful tools. If you are married but are in the process of getting a divorce, a temporary parenting plan is also useful. It can outline and establish expectations for you and your spouse. In doing so, the hope is that any bitter or contentious feelings may be contained. 

To note, the temporary parenting plan may not be the final version, but it can give you an idea of what to expect. This allows you the time and space to make or negotiate changes to a parenting plan that may be mutually agreed upon and/or ordered by the court.

Contact a Child Custody Lawyer in New York Today

If you need help with a child custody case, contact O'Brien Monagan Law Firm P.C.. Our child custody attorney in New York will advise you of your rights and guide you through the process. Contact us online or at 518-427-7000 to schedule a Consultation.