Child Custody

child and parentsNew York law recognizes three forms of custody: temporary custody, physical custody and legal custody. New York courts are encourage to order joint custody, but many factors can be taken into consideration, and courts are always able to deviate if it is in the best interest of the child (or children) to do so.

Temporary Custody
When a couple files for a divorce, a temporary child custody order is entered by the court. At the conclusion of a divorce, the marital agreement includes a final custody and visitation order.

Legal Custody
The final marital agreement will include a legal child custody order. Joint legal custody means that both parents make the major decisions that affect a child (or children). The courts look for a cooperative attitude between the parents to ensure that the decisions will be made jointly and in the best interest of the child (or children).

Physical Custody
The final marital agreement also includes a physical custody order. Physical custody determines where the child resides, and when the child visits the other parent. The majority of child custody orders by Alabama courts include joint legal and joint physical custody.

New York Joint Custody
State policy under New York laws encourages courts to order joint custody in all custody cases, but allows courts to deviate from that rule if it is in the best of the child (or children) to do so. If a court deviates from public policy, the court must state its findings in the record. A court can consider several factors when deciding custody issues, including the following inconclusive list.

  • The parents’ wishes as to the type of custody that should be awarded, *
  • The parents’ ability or willingness to jointly make decisions in the best interest of the child (or children)
  • The distance between parents’ homes, if it would present issues regarding a joint custody arrangement
  • The ability or willingness of each parent to encourage and foster love and respect for the other parent
  • The best interest of the child (or children).

Making Custody Decisions without Court Intervention
When a petition for divorce is filed with a court involving a child (or children), the children become a ward of the court until the divorce is finalized. The same applies during any custody action involving a court. Collaborative divorce and divorce mediation proceedings allow parents to make decisions about the custody of their children, including the type of legal and physical custody that each parent will have, without court intervention.

Custody Modifications
A modification to a custody order requires a material change in circumstances. While the courts will consider a parent’s past parental performance, circumstances can change. For example, if a parent was previously at home with the child, but is now traveling substantially, that change is material to the child’s life.

Visitation Orders
The final marital agreement will include the court’s orders regarding visitation. If a modification is sought, the court must also approve the modification.

Custody or Visitation Enforcement
If a couple has children, then the final judgment of divorce will include an order regarding the physical and legal placement of those children. If one party fails to comply with the court’s orders, the other party can seek enforcement of the court’s orders. That type of enforcement can include court intervention, as well as police intervention or even arrest.

Custody Modification
Either party can seek a modification to a court’s child custody order. In most instances, a court will only modify its orders if there has been a material change in circumstances and the change would be in the best interest of the child or children.

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