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Resolving Custody Concerns

Custody refers to the legal rights and responsibilities between parents or relatives caring for a child. There are two parts to custody. The first is the right and responsibility to make decisions for a child (legal custody). The second is determining where a child will live (residential or physical custody).

Legal custody is labeled either as joint legal custody or sole legal custody. In joint legal custody, the parents make major decisions about the child together, such as decisions about education, health and religion. The smaller, day-to-day decisions in joint custody are made by the parent who is physically caring for the child at the time. In sole legal custody, just one parent has the right to make the major decisions.

Physical custody may be labeled as shared physical custody where each parent has physical custody of the children 50% of the time or as primary physical custody where the children reside with one parent the majority of the time and have a schedule of parenting time with the other parent.

Either parent can apply for custody in family court. You can also seek an order of custody in the Supreme Court after a divorce has started.

After a hearing, the court will make custody arrangements based on what is in the child’s best interests. When deciding what is in the best interests of the child, the court may consider many factors, including but not limited to, the following:

  • Which parent has been the primary caregiver
  • The ability of each parent to care for the child
  • The physical and mental well-being of each parent
  • Past history of domestic violence, if relevant
  • Work schedules of each parent
  • The child’s relationship with other relatives
  • The child’s preference, depending on the child’s age and maturity
  • The ability of the parents to communicate and to have a mutually respectful relationship with one another

Of course, these decisions as to legal and physical custody could be made in a stipulated order or separation agreement if the parents are able to reach an agreement. A parent should have as much legal advice as possible to ensure that he/she understands his/her rights and obligations relating to child custody.

Additionally, the law says grandparents, aunts, uncles and other relatives who want legal custody over a parent have to show the court that the parents are not fit to care for the child – for example, that the parents have abandoned, neglected or abused the child, or that there are other extraordinary issues concerning the parent’s ability to care for the child. If a relative is able to prove these things, the court can then consider whether it would be best for the child for the relative to have legal custody instead of one or both of the parents. It is not uncommon for a relative to step in to seek custody of a child not their own. The burden to establish the right to custody by a nonparent is difficult. Such a relative is strongly encouraged to seek legal advice prior to filing an application for custody to ensure that they have a basis for seeking custody and to ensure that their pleadings are adequate.

In order to have a court order of custody or visitation changed, a parent has to file an application for modification in the appropriate family court or Supreme Court, and show that there has been a change in circumstances and that the change would be in the best interests of the children.

If you would like to schedule a confidential consultation with one of our family law attorneys, serving the Capital District and surrounding counties, call 518-373-9300 or contact our office online for a confidential consultation to answer your questions.

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