In any divorce or legal separation case that involves children under 18 years old, a major issue that must be addressed is where and with whom the children will live, and who will have responsibility for making legal decisions regarding them. This is called child custody. The parents, often with the help of the court, will come up with a parenting plan.
The details of the parenting plan will differ from case to case, but there are two main categories of parenting plans. In the first category, one of the parents usually has full custody. When there is sole custody, the custodial parent is the one with responsibility to make legal decisions on behalf of the minor children. The non-custodial parent usually receives court-approved visitation rights with the children. Depending on the agreement, the non-custodial parent may also share in the decision making. That parent would have access to the child(ren)’s school and medical providers.
The second category is when the parenting plan provides that the parents will be joint custodians over their minor children. In such cases, the parents are joint custodial parents, and have joint responsibility to make legal decisions for the children, including decisions regarding the residence of the children. In New York, joint custody does not mean that children spend half of their time with one parent and half with the other parent. It is important to know that according to the case law in New York, an arrangement for joint custody has to be agreed upon by the parties. The court cannot force a party to accept a joint custody plan. In other words if one party wants sole custody and the other party wants joint custody, there must be an agreement for a joint custody arrangement.
If the parties fail to reach an early resolution of the custody and visitation of their children, the court will frequently issue temporary decisions regarding child custody and visitation. These temporary decisions will be finalized when the case is finished. The court decisions regarding child custody remain in effect until the child reaches the age of 18, unless the parents can get the court to modify or change the final decision.
In cases where the parents are strongly disputing custody and visitation and cannot come to an agreement, or when one or both parents has been accused of child abuse or neglect, the court may appoint a separate attorney for the child. This attorney is called the “Attorney for the Child” (previously referred to as a law guardian). The Attorney for the Child serves the interests of his clients as your lawyer will do for you. The Attorney for the Child is not an investigator for the court, but the representative of your children. Except in rare cases due to the young age or inability of a child (or children) to express an opinion, the child’s attorney is required to fight for his client’s wishes. The court has the power to order one or both parents to pay the attorney’s fees of the Attorney for the Child, but the parents may challenge the attorney fee award if it seems too high. However the court may deny that challenge.
Another individual the court may appoint in a contested custody or visitation matter is a “forensic expert.” This expert is often a psychiatrist, psychologist or social worker who interviews and tests the parents, children and other significant people in the children’s life and submits a report to the court. The report and the expert’s testimony, if necessary, are supposed to aid the court in reaching its decision regarding the children. Depending on the finances of the parties, the court will direct the parties to pay for the forensic report and any necessary testimony.
As you can see, if you and your spouse can enter into a fair agreement, you will avoid the uncertainty and expense of a trial to determine custody or visitation.