Child Custody

One of the most difficult parts of a matrimonial practice is dealing with the impact the dissolution of the marriage has on the children within the relationship. Generally parties are asked to decide or have it decided for them, who will be the residential parent of the children. (With whom will the children reside). In that Joint Residential Custody in this state cannot be mandated by a court (where the children live with both parties and share time), unless it is specifically the wish of the parties and expressly agreed to in writing, such a shared custodial relationship will not be the case.

Residential Custody

Residential custody is where the children live day to day. The Residential Custodial parent will make the day-to-day routine decisions on behalf of the children, usually without input from the other parent. These decisions unless specifically outlined in the agreement between the parties can span a very broad spectrum of control over the children. The choice of religious upbringing, summer school and activities for the children, dental and medical care (except for major surgical decisions) can be determined by the residential custodial parent, often without input from the non custodial parent.

Joint Custody in New York

The term Joint Custody without the qualifying language of Residential Custody is a misnomer of sorts. The term Joint Custody with Residential Custody to one parent, allows the Non-Residential Parent, the right to input regarding, the health, education and general welfare of the children. This broad language gives the parent input in what is normally considered serious or life altering decisions. It also leaves a lot open to interpretation. Does it include choice of schooling? Perhaps, if the non-residential parent is asked to split the cost. Does it include input with regard to the choice of Physicians? Perhaps, again if it involves some financial contribution or where a specialist is required for a specific medical reason. Choice of Religious upbringing? No, unless it is outlined in the agreement.

Visitation or Custodial Time

The Courts have said the use of the term visitation should be discouraged and in its stead “Custodial Time” should be used in order to describe the time spent with the non-residential parent. This parenting time is negotiable as long as the best interests of the children are taken into consideration. Generally, unless the parties live in the same town or close to the children’s schooling, weekday custodial time does not usually include overnights. Weekends are usually alternated as are holidays and school recesses.

Relocation of the Residential Parent

Unless the non-residential parent is in agreement, the residential parent will not be permitted to relocate to an area which will deprive the non residential parent of his/her custodial time with the children. The courts still use the “Best Interests of the Children Test”, however, recent decisions have generally denied the move if it significantly interferes with the other parent’s right regularly see the child.