Nassau County Family Law Blog

Wednesday, May 6, 2015

Overview of New York State Child Custody

Are There Different Types of Child Custody?

There are several different types of child custody under New York State law and there are many factors that are considered in deciding what type is appropriate in any given case.  Courts presiding over these types of issues are bound by the best interests of the child standard in all cases and will make their decisions accordingly.

The types of custody are:

• Physical custody: This type of custody encompasses where and with whom the child lives. That parent is responsible for the practical, day-to-day decisions concerning the child and keeping him or her safe, fed, happy and healthy. This is also known as "residential custody." 

• Legal custody: This is where one or both parents have the legal authority to make decisions affecting the child, such as his or her religious upbringing, educational issues and medical treatment. 

• Joint custody: This type of custody occurs  when both parents share legal custody and more often than not, have equal decision making authority. Each side has an equal role in making decisions for the child and each can “veto” the other's decision. This type of custody requires the parents to work together and if there is a disagreement the issue can be decided in court, or in some cases, a "parent coordinator" is chosen by the parties to assist them in coming to a mutually agreeable decision.

• Pendente lite or temporary custody.  This type of custody is the result of an order usually pertaining to the time between the case filing date and the ultimate resolution of the case, either through a trial or agreement. 

How is custody decided? The judge will decide based on the facts and circumstances of the particular case and the best interests of the child, considering many factors, including, but not limited to:

• Availability of parents: The judge may favor placing the child with the one parent who has more time to spend raising the child, rather than a parent who needs to have the child cared for by others during extended periods of time.

• Health of the parent: Both the physical and mental health of the parents and the child will be considered if they impact how well a parent can care for the child.

• Neglect or abuse: If there is a finding of child neglect or child abuse it will nearly always result in the other parent being awarded custody.

• Psychological evaluation: Otherwise known as  "forensic evaluations" are performed by a mental health professional to judge the mental fitness of the parents. If the issue is decided at a trial, this report is normally given great weight after testimony is elicited from the forensic expert as to his or her findings.

Other issues include home environment, how a parent behaves in court, willingness to have the other parent involved in the child’s life, the child’s preference, which parent was the primary caregiver in the past and keeping siblings together.

If you live in Nassau County and have questions or concerns about an upcoming or current child custody issue, call child custody attorney Howard B. Leff today at (516)739-7500 for a consultation.

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