Reviewed by Diana Szabo, Esq.
Key Takeaways
- New York has no 50/50 default.
- Legal and physical custody are decided separately.
- Courts rarely impose equal time after a contested hearing.
- They will approve it if you agree to it. Negotiating beats litigating.
Getting a divorce is challenging for any family, as it inevitably changes the dynamics of a home. This is especially true for children who may not understand the full implications of divorce. However, child custody is a highly contested issue that many families face, as parents will want their children full-time. If you’re unsure how custody is determined in New York, you’ll want to keep reading. You’ll also discover how a Long Island child custody lawyer can help secure your child’s best interests.
How Is Custody Determined in New York?
In New York, child custody is not a 50/50 default judgment. Though it seems unfair that each parent wouldn’t get equal custody of the child, this is because the judge and courts will examine several factors to award custody.
Generally, the judge will start by examining the case through an unbiased lens. This is to ensure that the decision is completely fair and unbiased toward one parent. However, the judge will review all the factors that can impact their decision.
The elements that a judge will examine include the following:
- The child’s emotional attachment to each parent
- Where the child primarily resides
- If there is a history of violence or substance abuse with either parent
- The parent’s career
- The ability of each parent to provide a nurturing home
- How many siblings, and if they should be kept together
Though these are not the only factors that will be considered, these are some of the most significant elements that the courts will examine.
Also, if a child is old enough, typically in their teenage years, they may express a preference of which parent they would like to reside with. Given the child’s emotionally mature enough, their opinion will hold weight.
While 50/50 custody may seem like the fairest arrangement, the court doesn’t care about fairness for the parents. Instead, the judge’s primary concern is ensuring that the child’s best interest is prioritized and guaranteeing the custody arrangement reflects the child’s needs. For some, this may be a joint custody arrangement.
“50/50” Is Really Two Separate Questions
Part of the confusion surrounding 50/50 custody revolves around the wording, as custody covers two different things, and the court will determine each matter separately.
- Legal Custody: Determines who has decision-making authority over the child, including matters like medical care, participation in religion, and educational matters. If the court grants joint legal custody, parents must reach an agreement when making decisions.
- Physical Custody: Determines where the child lives and who provides daily care. If the court grants joint physical custody, the child splits time evenly between each parent’s homes.
It’s important to understand that the court may issue one form of custody jointly, while granting the other solely to one parent. Typically, this is joint legal custody and sole physical custody.
A family in that position has joint custody in a real sense while the child’s time is nowhere near evenly divided. So when someone asks whether New York is a 50/50 state, the honest answer depends on which half of the question they mean.
You Can Agree to 50/50 Even Where a Court Would Not Order It
Something many parents are unaware of is that courts are typically hesitant to award equal time and shared decision-making because these matters heavily depend on cooperation that contested hearings tend to disprove.
As such, parents who genuinely want to navigate an equal joint custody arrangement are usually better off negotiating the terms than litigating in court. Reaching an agreement with your spouse, whether through negotiations or mediation, provides you with more control over the preferred outcome, rather than a judge who is hesitant to grant this arrangement.
Do I Need an Attorney?
Some families can work out child custody on amicable terms, especially if the divorce is a mutual decision. However, some parents will have drastically different ideals about what is best for the child, meaning there is no way to reach an agreement.
Where agreement is not possible, understand what you are asking a court to do. Under Domestic Relations Law § 240, neither parent has a prima facie right to custody, and there is no default arrangement the court works from. Joint custody in particular is treated as something suited to parents who can cooperate rather than something imposed on parents who cannot.
If you know your spouse plans on moving or has a history of violence or substance abuse, ensuring you have an attorney is essential. This is vital to shielding your children from being uprooted or subjected to violence.
What Custody Arrangement Is Best?
It’s critical to understand that no one arrangement is the “best.” Joint custody may suit some families better than others, while some families are better suited for a sole custody arrangement. What works is ultimately dependent on your circumstances, rather than a formula.
Contact an Experienced New York Family Law Firm Today
When you need assistance during your custody battle, we can help. At Barrows Levy PLLC, we can examine all the evidence to help you navigate your child custody case. We will work to ensure your child’s best interests are prioritized. Contact us today to learn how we can represent you during these difficult times.
