Joint Custody

Joint Custody In New York

Domestic Relations Law §240 grants the Court authority to award custody of a child to both parents, otherwise known as joint custody. What does this mean? If it works, it can mean equal custody. I’ve seen it done two ways. First, the parents keep the marital home and the children live in there. The parents swap in and out of the house. Second, I’ve seen it where the children split the week between the two parents. This of course normally lasts only until one of the two parents move on and begins a new relationship. Thus, the joint custody arrangement is fragile at best, even if both parents are working together in good faith. An easy example of how this arrangement may break down is if one parent needs to relocate just far enough making joint custody impracticable. In order for joint custody to work, both parents have to agree. If one party does not agree, the Court will not order joint custody especially where it can be shown that the parents cannot work together.

When thinking about joint custody, there are two components. First, there is joint legal custody. Joint legal custody refers to joint decision making in such things as health care, education, religious upbringing and discipline. Then there is joint physical custody. Physical custody is concerned with the child’s day to day residence. Thus, joint legal custody does not necessarily equate to joint physical custody.

Another way to think about this is as follows. Joint legal custody deals with life decisions for your child. Normally, absent Court intervention, you will always have a say in raising your child. You will have input on all major decisions. What you are really concerned about is residential or physical custody. In other words, where will your child sleep at night on a regular basis? Normally, the parent who is awarded residential custody will have final say on major decisions regarding the child. So, if you do not have residential custody, you still have input on major decisions however, if an agreement cannot be reached, then your ex-spouse will ultimately have the final word. All of this will be spelled out in an agreement and or Court order.

LEARNING POINT: Custody is a serious issue which can be hard to navigate, especially if parents cannot get along. While joint physical custody is an option, it is rarely used because of the difficulties in maintaining such an arrangement. Call us for a free consultation regarding what steps you need to undertake and what factors you need to consider when contemplating a divorce with children.

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