Reviewed by Michael Colin Barrows, Esq.
Key Takeaways
- Sole physical custody with joint legal custody is common and not especially hard to obtain.
- Sole legal custody is the difficult ask. It removes the other parent from decisions entirely.
- You must prove unfitness with evidence, not suspicion.
- Sole custody rarely ends the other parent’s contact.
When a child is at the center of a divorce, the courts rarely award sole custody to a parent for a number of reasons. However, when it is best for the child, they will do so. As such, if you’re going through a divorce and have concerns about your ex-spouse receiving custody, this blog explores what you must know about fighting for full custody with the help of a Long Island child custody lawyer.
What Is Full Custody?
Generally, custody has two different aspects: physical and legal. Physical custody refers to the party who is caring for and housing the child at any given point. Legal custody refers to the right of a parent to make important decisions for the child. This includes things like where they go to school, what religion they practice, and the medical care they receive.
It’s important to understand that the courts do not take the parent’s wishes into consideration. Instead, they must prioritize the best interest of the child, even if the parents are unhappy with that decision. Courts generally understand that a relationship with both parents is in the best interest of the child, but there is no prima facie presumption of equal parenting time in accordance with Domestic Relations Law § 240.
However, there are instances in which sole custody is granted to one parent. For example, if one parent has sole physical custody, they may have joint legal custody with the other parent, or vice versa. When full physical custody is granted, the courts will often grant visitation rights to the other parent so they may maintain some form of relationship with the child.
Which Kind of Full Custody Are You Asking For?
This distinction changes the answer to the question in the title. Sole physical custody paired with joint legal custody is among the most common arrangements in New York, and obtaining it is not especially difficult where the child has been living primarily with you already.
Sole legal custody is generally more complicated. Essentially, seeking sole legal custody means that the court will completely remove the other parent’s rights regarding their child’s education, medical care, religion, and general upbringing. This requires the parent seeking sole custody to show that the other parent cannot participate in these decisions due to absence, incapacity, or a level of conflict that makes joint decision-making unworkable.
Under What Circumstances Is This Granted?
Though the courts will do everything in their power to generally seek to preserve both parents’ involvement in the child’s life, there are circumstances under which being in the custody of one parent at any given time is not in the best interest of the child. The following list includes common reasons why a parent may not receive custody of their child:
- Substance abuse issues
- Abuse
- Neglect
- Incarceration
- Inability to provide a safe and stable home
- Severe untreated mental illness that affects the ability to parent
- Abandonment of the child
- Relocation far enough away to make shared arrangements impractical
If you want to fight for sole custody of your child, it’s important to understand that you must demonstrate why the other parent is unfit. As such, you’ll need to gather evidence that can help support your case. For example, you can gather police reports, DUI arrest records, and photos or videos that help showcase why it would not be in your child’s interest to remain in the care of your ex-spouse.
Other evidence can carry considerable weight. Medical records that suggest abuse, messages from the other parent, child protective services records, and testimony from individuals who have witnessed the conduct firsthand can support an application for sole custody. Third-party testimony, like that from family members, neighbors, or teachers, matters more than most parents anticipate, often because it comes from someone with no stakes in the outcome of the case.
What Sole Custody Does Not Mean
Sole custody does not mean that the other parent completely disappears from the child’s life. Even when one parent is granted sole legal and physical custody, the court will typically grant the other parent visitation, unless the court believes that visitation needs to be supervised or restricted. Sole custody essentially determines where the child resides and who makes the decisions on behalf of the child, and does not completely sever the relationship between the child and their other parent.
The Risk of Asking Without Grounds
Any parent who petitions the court for full custody by alleging that the other parent is unfit and cannot substantiate these claims invites the court to consider their own judgment and willingness to support the child’s relationship with the other parent. In fact, these are factors in the analysis of what is in the best interest of the child. If allegations appear tactical rather than genuine, it may negatively impact the position of the parent raising the concerns. This is not a reason to remain quiet about genuine concerns, but rather a reason to gather evidence to substantiate claims.
Custody Orders Are Not Permanent
It is also important to note that a custody order is not set in stone and can be revisited. If a parent wants to have a custody order modified, they must show that there has been a substantial change in circumstances since the order was initially entered, and that the proposed change reflects the child’s best interests. That works in both directions: a parent who lost custody can apply to restore it after addressing the underlying problem, and a parent who holds sole custody may face an application later if circumstances shift.
Contact an Experienced New York Family Law Attorney
As you can see, custody matters are not something that should be taken lightly. That’s why it’s imperative to connect with an experienced attorney who will fight for the best interests of your child. At Barrows Levy PLLC, we understand how difficult these issues can be, which is why our team is committed to helping you. Connect with us today to learn more about these complicated matters.
