Divorces can get messy, but when there are children involved, they can get even messier. New York’s child custody laws give the court the power to make decisions based on the best interest of the child. Ultimately, it isn’t about what either parent wants, but what is best for the children.
Sometimes this can get a little murky as parents make accusations against each other or try to prove the other to be unfit. Child custody battles can become heated and ugly at times. If you are dealing with child custody in your divorce, one of the best things you can do is get an attorney. Legal representation that is compassionate, knowledgeable, and experienced can help ensure the best possible outcome for your case.
How Does Child Custody Work in New York?
New York laws regarding child custody give the courts the authority to make decisions regarding the welfare of the child or children in a divorce, including if the child will be placed with the parents or, in extraordinary circumstances, with someone else like a family member or friend. The court has the legal authority to make orders about the custody of a child until that child is 18 years old.
Custody is a rather complex situation. There are two parts of custody:
- Physical custody – (residential custody) who has the actual physical custody, supervision, and care of the child
- Sole physical custody – the child lives with that parent more than half of the time while the other parent (noncustodial parent) has visitation.
- Joint physical custody – the child lives with one parent 50% of the time and the other parent the other 50% of the time.
- Legal custody – who has the legal right to make important decisions about the care of the child, such as religious upbringing and medical care.
- Sole legal custody – only the parent who was awarded sole legal custody is able to make important decisions for the child.
- Joint legal custody – both parents make the important decisions for the child, regardless of whom the child lives with.
If there is no court order assigning custody, both parents automatically have equal rights to both legal and physical custody of the child or children.
Is New York a 50/50 Custody State?
New York is not a 50/50 child custody state. New York law does not require that custody of a child be split 50/50. All decisions are made in the best interest of the child.
While a couple can get a 50/50 arrangement for custody, the court typically prefers that both parents are involved in their child’s life. This means that the law gravitates more toward a joint child custody situation.
Who Has Legal Custody of A Child When the Parents are Not Married in NY?
When a child is born to a couple who is not married, there is no assumption as there is with married couples that the custody of the child goes to both parties in the marriage. When those parties are not married though, the unmarried birth mother is automatically awarded sole custody of the child.
If the father desires any legal rights to the child, he must establish paternity in order to be recognized as the father. If the court deems it necessary, it can require the mother, child, and father to submit to a DNA test.
If the mother and father are agreeable with each other, they can complete the Acknowledgment of Paternity form and name the child’s father officially. Only unmarried parents need to do this. After the acknowledgment form has been completed, the court will open a paternity case.
At What Age Can a Child Decide Which Parent To Live With in New York?
In the state of New York, children are no longer subject to the court’s decisions or order of custody once they reach 18 years. At that time, they are free to go where they want. If a teenager is 16 or 17 years old, the court will generally hear what that child wants and take it into consideration. For the most part, the court will usually not try to influence the child unless there are serious problems with the child or the parent they want to live with. If the child’s choice is not reasonable, the court will not honor it.
Younger children are not considered to be able to determine what is in their best interest, so their wishes to live with a certain parent may not be given as much weight. At the same time, the court will consider the child’s preference to a degree since it does indicate that the child might be more bonded to that parent.
If the parents have been living apart, the court may just leave the custody arrangement as it is since it is already established, and it would mean fewer changes and upsets for the child.
If there are siblings, the NY court typically tries to keep siblings together unless one child has significantly different or substantial needs. In those cases, the court usually splits the custody 50/50.
Quality of life is also considered which includes the stability of the parent, quality of the home, neighborhood safety, cleanliness, quality of healthcare available to the child, and other important factors.
Can a Mother Keep the Child Away from the Father in New York?
If there is no order of custody, the mother or the father has the right to keep the child. If there is a custody order, neither parent is legally allowed to break it. This means that if the father has been granted visitation by the court, the mother cannot violate that order by denying visitation.
If she has valid reservations about allowing the child to go with the father, then she needs to return to court and seek a modification to the custody order.
What are Fathers’ Rights in New York?
If the father is not married to the mother of the child when it is born, he has no rights as a father and must establish paternity to get those rights. If he is married to the mother of the child when it is born, he is automatically considered to be the legal father.
If the husband is not the biological father, the mother or the biological father can file with the court to change the legal father to the biological father instead of the husband.
Once the father has established paternity, he is given full rights to the child.
Can a Mother Move a Child Out of State Without the Father’s Permission?
Under New York law, a parent cannot move a child out of the state if they do not have the permission of the court or if the other parent has an objection to it. If one parent does move, the court may order the child to stay with one parent during the summer and the other parent during the school year. The court may also require increased communication such as video chat, text, or phone. Also, if one parent lives far off and the parents have joint custody, both parents will retain their authority over the decision-making for the child wherever that child is.
What Qualifies as an Unfit Parent in New York State?
If one parent sees that the other parent is endangering the child, they can return to court and ask that the child be removed from that parent’s custody. In extreme cases, the court will take away that parent’s parental rights permanently. If neither parent is in any shape to care for the child, a family member or friend can plead to the court and try to get custody.
New York’s criteria for an unfit parent include:
- Abandonment
- Abuse
- Addiction
- Blocking or denying visitation rights
- Neglect
- Incapacitation
- Poor home environment
If you are going through a custody hearing or will be soon, you need legal representation that you can trust. At the Litvak Law Firm, our compassionate, talented team of family law attorneys is ready to help you get the best possible outcome for your case and your child’s best interest.
Call 718-989-2908 today and schedule a consultation to get started. Don’t wait, custody can get difficult at any time. Don’t wait until it is too late.