JOINT CUSTODY CHALLENGES: NEW YORK COURTS UNDERSTAND THAT MOST DIVORCED PARENTS HAVE NO IDEA HOW TO MAKE JOINT CUSTODY WORK
WHEN COURTS AWARD JOINT CUSTODY CHALLENGES ABOUND SO IN NEW YORK THE COURTS ARE VERY CAUTIOUS ABOUT DOING IT
In New York, absent a showing that the arrangement will not be “inimical” to the child’s interest, courts generally do not award joint custody. What does that mean in English? Well it means that usually when a couple divorces it’s usually because there has been a colossal breakdown in communication. They no longer agree on things, they can’t listen to each other, sometimes, they can’t even stand the sight of each other, and to the extent possible, if they can get away with it, they want to pull the kids along to be against the other parent. There are exceptions of course. the rare couple who, even though ending a marriage, are as amicable, mature, reasonable, loving and cooperative as can be. With characters like this, the court can be persuaded to award joint custody in New York. But otherwise, it is a very difficult proposition.
Custody has a two part character — Legal Custody and Physical custody.
There is a difference between the two. A court can order joint legal custody, or joint physical custody, or joint physical and legal custody. It is generally who will have legal custody that is the subject of the most contention.
Legal custody involves making decisions about the health, education, welfare, religious upbringing and discipline -among other important issues pertaining to the children. Which parent will decide these matters? The parent who has legal custody. If only one parent has legal custody, that parent does not have to consult with the other parent with respect to these matters. If the parents share joint custody, then both parents must consult on these matters and come to a decision that is in the “best interest of the child.”
A parent can have joint legal custody, but not physical custody. That means that the child lives exclusively with the other parent, but the non-custodial parent would have liberal visitation that includes summer, weekends and school holiday arrangements.
For the courts in New York to grant joint custody, there has to be demonstrated evidence that the parties are able to work together without acrimony and bitterness. The fact that one lives in another country or state does not, ipso facto, preclude an order of joint custody. The test is really the relationship between the parties, the involvement of both parents in the lives of the children, the children themselves (the older they are the more relevant their wishes become) and what the experts (like psychiatrists, law guardians, school personnel, etc) opine.
originally published August 2008 LAST UP August 2014