Over the years, I have handled a number of cases associated with custody and parenting time (or visitation), particularly throughout Nassau County, Suffolk County, Queens, New York City and nearby areas. In my experience, I have found that often, the process of dealing with custody and visitation can differ widely from one situation to the next, however, a certain collection of considerations and decisions will need to be made in any case. In any legal matter concerning children, if an agreement is not made, the court will be required to consider the situation and decide these issues according to the best interests of the child(ren). Whether the topics are decided upon in a mediation, litigation, collaborative law case or settlement negotiation, the same topics need to be covered.
Legal Custody and Residency
There are two significant areas when it comes to determining child custody that need to be set forth. The first concerns where the children will live. When a child lives with a particular parent, the majority of the time, according to a court order, that parent is said to have residential custody under the law. The second major concept that needs to be defined through a custody order is who has the capacity to make decisions on the behalf of the child. The parent or couple responsible for decision making under court order are regarded as having “legal custody.”
When one parent has sole custody of the children that implies that the child will live with that person, and that person will have complete decision-making authority. In these circumstances, that one parent will have both legal and residential custody of the child. Generally, it is recommended, and spelled out in the order, that the parent with sole custody consult with the other parent before any serious decisions are made. Ultimately, though, the parent with full custody will have the final say.
When awarding sole custody is not made, a common arrangement is to give one parent residential custody, but share legal custody between both parents. This means that the child in question will live with one parent, but the couple must come together to make decisions for the child. Often the custody labels are just semantics as someone can share legal custody with another parent yet one parent has final say in the event of a disagreement. Sometimes parents may have joint custody with spheres of influence. What this means is that one parent may have final say over decisions in the sphere of education while the other has final say over the sphere of health and medical decisions. One parent would have the sphere of general social welfare or this category could be broken down into religion and extracurricular activities for instance.
Split residency and joint decision making describes the arrangement wherein the child or children live with both parents for an equal amount of time. Furthermore, both parents must agree on the decisions made for the children. Often, if parents do not agree to shared or joint custody, the court will order one parent to have full custody, and the other to be given parenting time.
Issues that Require Mutual Discussion or Consent
Acquiring legal custody gives a parent the right to make various decisions regarding their children. These decisions may center on medical, educational, religious, and developmental or afterschool activities. Joint legal custody demands that both parents be given the opportunity to share these decisions. Parents that agree to a joint custody arrangement will generally continue to play an active and full role in providing a healthy educational, economic, social and moral environment for their children.
In simple terms, joint legal custody means that both parents have the responsibility to carry out the tasks of support, guidance, and caring for the child or children. Methods to break ties can be spelled out in the agreement such as thee parents agree to take the advice of the pediatrician on medical issues or the teacher on educational issues.
Parenting Time, Visitation and Access
There can be a number of elements that come into question when making decisions regarding parenting time, visitation and access rights for parents. The issues are who gets to spend time with the child on weekends and weekdays, and who has access over school holidays, summer vacations and holiday times.
Visitation schedules and parenting time can differ widely from one family to the next. Parenting time schedules detail when one parent has permission to spend time with their children. Because each family situation is different, it is possible for various nuances to appear in particular cases, which might not appear in other parenting time schedules.
Some visitation schedules are not particularly specific, and simply demand parents to arrange and discuss mutually agreeable times for parenting in the future. On the other hand, some cases have detailed provisions, which requires decisions to be made about where children will spend their holiday time, and so on.
In most cases, a provision exists that allows parents to interrupt the typically scheduled parenting time of the other so that they may arrange one or more weeks of vacation time every year. A provision can be included to offer one parent priority for the vacation time in, for example, odd numbered years, and the other priority in even numbered years.
Geographic Issues (Relocation)
Often, a non-relocation clause will be issued to ensure that each parent gets access to their allotted parenting time. The clause therefore states that neither parent will be able to relocate to a certain distance, or cannot re-locate from a certain city, county or state without direct written permission from the other parent or a court. Parents that already live out of state or long distances away may have different schedules of parenting time than the typical arrangements allow. For example, an out-of-state parent may have access to an extended period of time with the child during summer breaks. The child will often be taken to visit the parent who lives out of state during school breaks, and frequently a provision is included that allows the out-of-state parent to have visiting time when they are able to come to New York.
Access to Records and Notifications
Each parent typically will have the right of access to and can receive copies of, medical, dental, school and religious records, as well as any other important documents containing information about the child. Additionally, each parent will have the right to access information regarding the dental or health insurance that is available to their child. Each parent is required to keep the other informed about the name and address of the child’s school, the status and progress of their education, and each parent will usually have access to parent-teacher conferences and the right to speak with the professionals that care for their children.
In the case that the child in question suffers from an accident or illness, each parent is required to notify the other of the illness or accident, as well as the healthcare provider’s name, and where the child will be treated. What’s more, each child has the right to reasonable contact and access to the child. They need to be updated regarding changes in phone numbers and addresses.
As with everything there are numerous variations and differences from case to case. The foregoing was intended to be illustrative of typical decisions. Please explore this blog and our website for more information about family law, and the different processes that can be accessed to help you deal with your issues. As always, don’t hesitate to contact us about your free consultation – we look forward to speaking with you.