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Matrimonial Law > Child Custody and Visitation

Divorce | Child Custody and Visitation

Child custody refers to the legal guardianship involved in a divorce case. In New York, there are two forms of custody, legal and physical:

  • Legal custody refers to which parent can control the child’s lifestyle.  This includes religious, medical, and educational decisions that are made by the legal custodian or custodians. Legal custody can be granted to one or both parents.
  • Physical custody refers to which parent resides with the child.  Often enough, one parent may have sole physical custody, and the other may have visitation rights.  Or, more rarely, both parents may have physical custody, which means the child lives with each parent half of the time.

Parents that do not receive physical custody of their children will usually receive visitation rights on a schedule mutually agreed upon with the custodial parent or provided by the court, if the parents are incapable of agreeing.  Usually, this schedule is drafted in a manner to be as mutually convenient for both parents as possible.

The Best Interest of the Child: Who receives Custody of the Child(ren) 
When a child custody case is brought to the court, the court will try to accommodate the best interest of the child and choose the environment that offers the most stability. Some factors courts will take into consideration in a child custody case are:

  • The child's age, sex, and mental and physical health
  • The parent's mental and physical health
  • The parent's lifestyle
  • The primary caregiver responsible for the child's day to day needs
  • Any history of child abuse
  • The emotional bond between the parent and child
  • The parent's ability to provide the child with food, shelter, clothing, and medical care
  • The child's regular routine
  • The quality of the child's education
  • The child's preference, if the child is above a certain age (this is usually around age 12)
  • The ability and willingness of the parent to encourage communication and contact between the child and the other parent

Child Custody Evaluations are sometimes ordered by the Court.  An evaluation usually involves an expert in the field meeting with the child and the parents to conduct a series of interviews and exams in order to analysis the health and well-being of the child and the relationship with the parents.

In Custody cases, the child(ren) will be appointed an Attorney for the Child.  This lawyer will seek to represent the best interests of the child(ren) in the course of proceedings.

The best parties to determine the custody and visitation of a child or children are the parents.  Every effort should be made before requesting judicial intervention to come to terms on this difficult and tricky area of the law.