When people get divorced in New York, there is usually an argument over custody of their children, including disputes about joint physical custody. This is a very emotional issue, especially for children. It is important to remember that courts are required to decide what is in the best interests of the child. Judges have a lot of latitude in deciding this, and they will consider any factor that they feel is relevant to the case. This includes the parents' mental and physical health, each parent's relationship with the child, the child's relationships with extended family members, and a lot more.
In most cases, judges will want to award joint custody, often understood as joint physical custody, if possible. This means that both parents share the decision-making power for the child, as well as sharing time spent with the child in their respective homes. This can be done in several ways, including through a shared decision-making agreement or a parenting plan that includes joint physical custody. The court can also award sole custody to one parent, in which case the other parent will have visitation rights.
Before making a decision about joint physical custody, the court will often hire an expert to help them. This expert can be a psychologist, social worker, or other professional who can examine the situation and make recommendations to the judge. It is common for the expert to interview the parents and the children. Depending on the circumstances, this may take place in a private conference room with just the judge present. The judge will then review all of the information and decide what is in the child's best interests, including whether joint physical custody is appropriate.
Sometimes the court will refer the parties to mediation before going to trial. It is also possible for the parties to request mediation voluntarily. Mediation is a process where a neutral third party, called a mediator, helps the parents come up with a parenting plan that will meet their needs, often involving joint physical custody. Often, this can avoid a lengthy custody trial.
During a custody trial, the judge will hear testimony from both sides and read any reports that have been prepared by professionals. The experts will be asked to give their opinions on the best interest of the child, and the judge will then decide what type of custody to award, whether it's sole custody, joint custody or joint physical custody.
Marital fault will not play a major role in determining custody or joint physical custody. However, if the marital fault has a direct impact on the ability of the parents to care for the child, it may be considered. For example, if the mother was cheating on her husband and the children overheard this, that could be a serious concern.
At what age can a child decide which parent to live with in joint physical custody situations?
In New York, there is no set age when the court will begin considering a child's preferences. Generally, the court will consider the child's preferences as long as it is not detrimental to the child's well-being, including preferences regarding joint physical custody.
In some cases, the judge will order a Lincoln Hearing, which is a confidential interview with the child without the parents present. This will allow the child to testify about their wishes in a safe environment, including their preference on joint physical custody. In most cases, the judge will not award custody, including joint physical custody, to either parent if they have been convicted of domestic violence or child abuse. However, the judge can still grant visitation rights to the non-custodial parent if they can prove that it would be in the child's best interests.
Parents who are sharing custody of their children, often under a joint physical custody arrangement, will often come up with a parenting plan on their own. These agreements typically include details of legal and joint physical custody, a visitation schedule, and even mandates such as substance abuse treatment. However, circumstances change over time and it may be necessary to modify the child custody agreement, including alterations to joint physical custody. If the current arrangement no longer meets your child’s needs, contact a New York family law attorney to discuss filing for a custody modification in court.
A Custody Agreement Modification is Possible for Various Reasons, Including Changes to Joint Physical Custody
The first and foremost concern should always be the best interests of your child. In addition, there must be a substantial change in circumstance to warrant a modification in the original custody agreement, including changes to joint physical custody. Whether that change is due to the emergence of a new relationship, financial changes, or any other significant factor, a child custody lawyer can help you decide on a proper arrangement.
If you and your co-parent are on good terms and came up with the original custody arrangement, including the terms of joint physical custody, on your own, you may be able to agree to changes in an informal fashion without having to go through the courts. However, there are a few disadvantages to this approach. The biggest is that, should the other parent want to revert back to the original arrangement, including the original terms of joint physical custody, you would have no legal standing to prevent this because there is no formal agreement in place.
You can file a petition for a custody modification, which may include changes to joint physical custody, either through the Supreme Court or the Family Court depending on when the original custody order was made. The process of requesting a modification requires the petitioning parent to identify the existing court-ordered custody arrangement and explain how it, including the stipulations for joint physical custody, is no longer in the child’s best interests. A hearing will then be scheduled.
The judge will listen to both sides of the story and then make a decision. If the judge approves the modification, the custody agreement, including terms of joint physical custody, will be amended and you will be able to enforce the new terms going forward. If the court denies the modification, you will have to file for a contempt of court action in order to force a change.
When it comes to custody of your child, including decisions about joint physical custody, do not try to go through this process on your own. You need an experienced New York family law attorney to help you determine the best course of action in your situation and ensure that your rights are protected throughout the process. Contact Juan Luciano Divorce Lawyer to learn more about how our firm can help you with your child custody modifications, including those involving joint physical custody.
Typically, people associate "joint custody" with an arrangement in which both parents have significant time with their children, often referring to what is known as joint physical custody. However, shared custody can mean many things, including just about any type of schedule that allows the child to spend some time with each parent. There are even cases in which one parent has sole physical custody, but the parents share joint legal custody. The most common type of joint custody involves the child living part of the time with each parent, which is often described as joint physical custody, and sharing decision-making rights.
In a joint physical custody case, the parents work together on major issues such as health care, education and religion. The parents usually also agree on a parenting plan or schedule, which determines when the child will be at each parent's home. In some situations, the parents will rotate which parent has the child at their house for each week, while still making decisions together (joint physical custody).
A growing trend is to create true joint physical custody arrangements, where the child lives with both parents almost equally. These types of custody can be difficult to negotiate, but they can be very beneficial for the children. Research has shown that these kinds of joint physical custody arrangements are associated with better mental health outcomes than sole physical custody or partial-custody.
Regardless of the type of custody, it's important to keep communication open with your ex. This is especially crucial if you have a joint physical custody agreement and you have difficulty getting along or you feel like your divorce may not be in the best interests of your children. This communication should include discussions about scheduling, school events and extra-curricular activities. It's also a good idea to discuss how you want to handle things like discipline, medical needs and financial issues.
The amount of time your child spends with each parent can also impact their well-being. Research has indicated that children who live in joint physical custody arrangements experience fewer psychosomatic complaints than children who live with one parent, alone or with other relatives (solo physical custody). Children who are allowed to see both parents regularly can also develop more positive self-esteem and have a lower risk of drug use and depression.
Parents who are able to communicate well and put aside their own differences can set a positive example for their children, and this is a crucial step in developing a healthy relationship with the other parent. This will help your children understand that both of their parents love them and are trying to provide the best possible life for them in a joint physical custody scenario.
In addition, establishing a consistent routine can be very helpful in joint physical custody arrangements. Try to have your kids keep some basics at both homes (toothbrush, hairbrush, pajamas) and follow similar rules and consequences. For example, if the child loses TV privileges at your house for misbehaving, make sure that same consequence is in place when the child goes to your ex's house. This will help the transition seem less jarring and reinforce that the two houses in their joint physical custody arrangement are more similar than they are different.
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