When parties to a Nassau or Suffolk County divorce or separation have a child under the age of eighteen years old, whether working to settle their differences by written agreement or require the Court’s assistance by way of a trial, one of big issues will ordinarily be determining which parent shall be designated as the “residential custodial parent” and whether the parties together shall share “joint legal custody” or whether one parent shall have “sole legal custody” of their child.
Briefly stated, the “residential custodial parent” is the parent with whom the child tends to reside with most of the time, subject to the other parent’s “parenting time” or what used to be referred to as “visitation.” The residential custodial parent is generally the parent who receives child support from the other parent, often referred to as the “non-custodial parent.” There are many factors which impact which parent may ultimately be deemed to be the residential custodial parent however. If the matter goes to trial, a Justice, focusing on the best interests of the child, will determine which parent will be the residential custodial parent and then, what the other parent’s parenting time rights shall be. Many factors are at play when the Court makes custody determinations at trial.
When parties choose and are able to resolve custodial matters on their own through settlement, how residential custody is resolved, how parenting time schedules are determined and ultimately, how much child support is being paid between the parties is in the control of the parties themselves.
The other part of custody is “legal custody.” This generally refers to how the parents will deal with the major decisions concerning the child, usually focused on the health, education and welfare of the child. Generally speaking, if the parties are at trial on the issue of custody, the Court will award one parent legal custody because the essence of “joint legal custody” is the parties’ ability to work together and cooperate and respect each other in the best interests of their child. Clearly, if parties are fighting about custody in Court, the implication to the Court is that they cannot cooperate for the overall benefit of the child, so joint legal custody will not be awarded by the Court. One parent shall then be awarded legal custody of the child by the Court.
However, if the parties are resolving the issue of legal custody through settlement, the parties certainly may agree to joint legal custody and then, both parties shall have equal rights of control and input concerning these major decisions concerning their child. The general concept of joint legal custody may also be “customized” by the parties. For example, the parties could agree that one parent, maybe a parent who is a physician, will have final decision making power in matters of health and medical issues of the child and the other parent, a teacher let’s say, may have the final decision making power in matters of the child’s education.
If parties want to be creative and remain focused on the best interest of their child, then their settlement agreement may state the “spheres of control” for each parent over particular issues of decision making that the parties agree to. Other parameters of each parent’s specific areas of control which better suit the child’s needs may be explored during settlement discussions and once agreed, set forth in the parties’ divorce settlement or separation agreement.
The fundamental criteria for all custody determinations in Nassau and Suffolk divorce or separation cases is “the best interest of the child” standard. There is recognition in the custody laws in New York that what may be in the best interests of a child at one point in time may not be in that child’s best interest later on, due to changed facts, circumstances and occurrences. Accordingly, though parents may agree to a certain resolution to the issues of legal and residential custody or if the Court was involved in making those original determinations at trial, there are ways in which parents may modify residential and/or legal custody in order to adapt to the child’s changed “best interests.” The law on custody modification in Nassau, Suffolk and all other New York counties is complex and will be explored in a future article.
To better understand the nuances of child custody in Nassau and Suffolk County and how your particular facts and circumstances could impact this important issue, you are invited to contact Robert B. Pollack, Esq., principal attorney of The Pollack Law Firm, P.C. The Pollack Law Firm, P.C., serving clients in Nassau and Suffolk County, is always available to assist and represent parties in divorce and all other matrimonial and family law matters. Please call today to schedule a free consultation: (516) 938-3330.
By Robert B. Pollack, Esq., principal attorney of The Pollack Law Firm, P.C.
DISCLAIMER: This article is intended to provide only general information for entertainment purposes and should never be relied upon as legal advice. One should seek the assistance of experienced matrimonial counsel to assist in explaining the law, options and making important decisions in any divorce, matrimonial or any family law matter.