In the courts of New York and Long Island, as well as legal institutions throughout the world, it’s not uncommon for legal terminology to leave parents confused when it comes to matters of custody. Indeed, in some cases, parents or guardians may be left feeling uncertain about the level of custody they have – and what certain orders imply regarding their decision making authority in reference to their children. Some people even suggest that the statutes employed in New York are harder to understand than those in other states, as they do not necessarily make direct reference to physical or legal custody, but only the word “custody” which can be taken to mean the concept of total custody over a child or children. However, although it can be difficult to understand, most New York custody orders I have been involved with, have addressed the varied aspects of custody, from legal and physical custody, to sole and joint orders, even if the terms aren’t easy for parents to follow.
More often than not, in New York courts, the term “joint custody” will refer to joint legal custody. I try to ensure that my clients know this when going into a case, as legal custody is significantly different to “physical” custody. Legal joint custody implies that both of the parents involved will have the right to decide upon important issues regarding their child – such as educational or medical matters. When a divorce or custody resolution is amicable, parents may voluntarily agree to a joint custody agreement and a judge will almost invariably approve it. However, most New York courts will not force joint parenting on a family. Indeed, when parents must approach the court to have a judge determine what is best for the custody of a child, the implication is that the couple does not get along well enough to make decisions together that are appropriate for their child.
As a family law practitioner in the field of child custody, I have often heard statements from the court that suggest that joint custody is only an appropriate option if both parties agree to it. The rationale of this decision has been explained by the fact that, in a joint legal custody situation, neither parent may override the other. Because of this, if the couple cannot agree on a crucial issue, they will reach a stalemate, and the child will be left without anyone who has the authority to make decisions on their behalf. For example, if there are two votes going in opposing directions, there will be a tie in regards to authority, and the child will be left without a deciding vote.
The complexities of this issue were discussed in an article written by Marie McCormack. The article, named “Joint Legal and Residential Custody – A Win-win-win”, was published in the New York State Bar Association’s Fall/Winter Family Law Review for 2015. McCormack suggests, as New York case law has held, that we know when it may not be appropriate to assign joint legal custody to a couple. For example, an antagonistic relationship between the parties involved would usually preclude an award of joint custody. However, just because legal custody may not be appropriate in a certain case doesn’t mean that an award of joint physical custody would be inappropriate.
As a practitioner of law in these complicated areas, I have seen a number of outcomes regarding joint legal custody. One of which was an arrangement known as “joint legal custody with spheres of influence”. This particular award meant that the different parents addressed within the order would be given final decision making authority over specific categories of the child or children’s life. For instance, while one parent may have the final say over the type of health care related decisions made regarding the child, the other could have final authority in relation to educational matters.
Important, within the Bar Association article, and in regards to the cases that are cited therein, there is an implication that in a custody battle wherein the court chooses to award full custody to one parent over another, the other parent is classed as the “loser”. In some cases, this can be a huge loss for the child, and it is suggested that a joint custody order helps to provide psychological support to the parent that the child is unable to live with, which filters down into the growth and development of the child, who will be exposed to a healthier atmosphere.
While both legal and psychological practitioners alike regularly stress that families who are able to make joint custody agreements work often offer great benefits to transitional families, particularly for the children, it’s worth remembering that being unable to voluntarily make a joint custody agreement doesn’t always preclude advocating for that outcome at trial. While achieving such a result may be seen as the exception, rather than a rule, the court still has the authority to award joint custody after a trial, meaning that parents may choose to advocate for it if they wish. Indeed, the frequently stated proposition that custody battles are “all or nothing” matters may not necessarily be the truth in every case. Many psychological experts feel that the benefits to children of a joint custody arrangements outweigh other custody orders. Of course this must be decided on a case by case basis.
Similarly, matters of custody decided on an interim basis, while the case is pending, aren’t necessarily permanent. A judge in New York may choose to order a temporary arrangement for custody during a custody case or divorce that helps to address a schedule of visitation during an instance wherein litigation is pending. When the case or the divorce in that circumstance is to be made final, the judge will determine whether or not the temporary order of custody should be transitioned into a permanent order, or whether the arrangement needs to be tweaked. What’s more, even after a “final custody order” is entered, either parent involved may petition to change the decision, or make alterations if certain circumstances are changed. For example, if joint decision making is not working, either side could petition to have that re-examined.
Please browse our other web pages and blog entries at your leisure to find out more information about family law, custody agreements, and visitation. Call regarding your free initial consultation too, as we look forward to speaking with you regarding your legal needs.