During a divorce case, one of the thorniest issues that couples often have to deal with is child custody. This is just as crucial as spousal support and asset division. Because it’s a very sensitive issue, it’s also significant because of contention and emotional strain.

Whether you prefer joint or sole child custody, the decision ultimately lies in the hands of the courts. In New York, the courts’ sole concern is the child’s well-being. This is what drives the case and its decisions.

The only reason a court really wouldn’t interfere is if ex-couples who have already come to an agreement about the type of child custody arrangement they prefer. If a couple can reach this agreement by themselves, the courts will willingly grant them that.

But, if they can’t –as is often the case- the courts will follow the steps allowed by the law and its discretion to grant custody to the worthy parent. There are two types of custody. These are shared or joint custody and sole custody.

Now, when most people think of child custody rights, they often think of it as only terms of physical custody. Yet, the law indicates that there’s more to it than just physical custody. There’s also legal custody.

Physical custody is all about where the child lives and stays, while legal custody is all about the parent that gets the legal rights over the child.

So, in some instances, the courts can grant one parent physical custody and another parent legal custody. In other cases, parents can get both physical and legal custody. It all depends on a multitude of factors that we’ll be explaining shortly

What’s Shared or Joint Custody?

In New York, joint custody is also called shared custody. This is when the courts give both parents equal physical and/or legal custody of the children. It means that both parents (and caregivers too) can make legal and physical decisions about their child(ren).

Sometimes, joint custody can involve both physical and legal rights. In joint physical custody cases, the child can stay with both parents at allotted times –usually 50/50. But that’s not usually practical. So, most parents come up with their own arrangements.

One parent can have the children during the weekdays, while the other gets the children during the weekend. Or they can decide the best arrangement that works for both of them.

The courts will often ask both parents if they’ve reached an agreement about this situation. Some parents, however, choose to live under the same roof, only as housemates and co-parents, nothing else. In this instance, joint physical custody is easier.

Joint legal custody means involves a lot more than just where the child stays. It involves the legal rights to make legal decisions about the children. These include:

  • Education
  • Medical
  • Religion
  • Extracurricular activities
  • Insurance
  • inheritance

The court often prioritizes and prefers joint legal decisions because it feels it’s in the best interest of the child. The only downside is both parents have to be in agreement before anything can be done.

As you can imagine, this can be good if both ex-partners parted ways amicably. But if there’s a lot of bad blood, it can get bad really quickly. When situations like this occur, the courts are likely to award just one parent the legal rights to make these decisions.

What’s Sole Custody?

This is when the courts give physical and sometimes, legal custody to just one party. This is usually the case if one party is considered dangerous or harmful to the child’s well-being. Sometimes, the courts will grant one party sole physical custody, and the other sole legal custody.

This is rare, but it does happen. At the end of the day, the key factor that drives these decisions is the child’s best interests. If one parent gets both sole physical and legal custody, the other parent will only have visitation rights –which can be pretty restrictive.

If the person has a history of endangerment and abuse, the courts might even grant supervised visitation rights. This means the other parent can see or spend time with the child, without another adult being present.

The Case of Mixed Custody

Sometimes, the courts grant something called mixed custody. This can be mixed sole and joint custody or just mixed joint custody. In the first scenario, one party gets sole physical custody, and both parties get joint legal custody.

In the second scenario, both parties get both physical and legal custody rights over the child. There’s also a third scenario where the courts grant one party sole legal rights, and both parties joint physical custody.

All of these scenarios depend on the court’s discretion and is awarded on a case by case basis.

Factors that Influence Joint and Sole Child Custody Rights in New York

At the heart of the court’s decision on child custody cases is the child’s best interest. The court’s rulings are based on whether the child will thrive well with joint custody or sole custody. However, to be more specific, here’s what the courts look at:

  • Is there a history of physical, emotional, and verbal abuse?
  • Is a parent physically and mentally able to raise the child in a healthy environment?
  • Is there evidence of substance and alcohol abuse by any of the parents?
  • Which parent is better equipped to financially take care of the child
  • Is there a domestic partner living with the other parent?
  • Which parent is able to spend more time with the children?

These are just some of the factors that the courts consider. The guidelines that the courts follow are actually more comprehensive, but the aforementioned should serve as a guide when you’re seeking sole or joint custody.

Can Joint or Sole Custody Agreements be Modified?

Yes, it can, If there’s substantial evidence of a significant change in circumstance.

For instance, if the courts granted one partner sole custody because the other had alcohol or substance abuse problems, the courts could consider a modification of custody agreement IF the other party proves that he/she is clean and no longer a druggie or alcoholic.

Fighting a child custody battle requires the skills and experience of a competent child custody lawyer. If you need some legal advice or want to talk to a lawyer about your options, Kimberly Pelesz can help. Call (914) 402-4541 today for a free case evaluation.

By: Kimberly Pelesz

Family law and criminal defense attorney Kimberly A. Pelesz received a B.S. degree magna cum laude and an M.P.A. degree summa cum laude from Binghamton University. She earned her J.D. from Pace University School of Law in White Plains, where she was selected for Phi Alpha Delta. Her charitable activities include work with My Sisters’ Place in White Plains and the Westchester County District Attorney’s Humane Education Taskforce.