There are two components to child custody: legal custody and physical custody. “Legal custody” is about the right to make decisions regarding a child’s welfare (e.g. the health, education, and religious upbringing of a child). “Physical custody” is about where the child will live. When one parent has “primary” physical custody, it means that the child lives with that parent the majority of the time. When parents have “joint” legal custody, it means that each parent has an equal right to make decisions affecting the child. It is important to understand the difference between these two components; just because one parent has “primary” physical custody does not mean he will also have “primary” legal custody.
The marital status of the parents is not a factor for determining custody. As long as paternity has been established, New York treats each parent the same for purposes of determining custody. In other words, there is no presumption in New York that the mother, for example, has a greater right to custody of the children than the father. If there is no Court Order concerning custody, then either parent has a right to keep the child with him/her.
When a Court is asked to make a custody determination (whether legal or physical custody), the Court must make its decision based upon “the best interest of the child, and what will best promote [the child’s] welfare and happiness.” N.Y.D.R.L. Section 70(a).
When deciding the “the best interest of the child,” the Court will look at a multitude of factors; for example, the Court can consider the home environment of each parent, the work schedules of each parent, the level of involvement each parent has had with the child, the child’s relationship with each parent, whether either parent nurtures the child’s relationship with the other parent or extended family members. The ability of the parents to communicate effectively and cooperate in making parenting decisions is especially important when a Court is determining whether “joint” legal custody is appropriate.
People sometimes presume that the child’s preference to live with one parent or the other will control the Court’s decision. That presumption is false. While it is true that a Court can consider a child’s preference the Court is not bound by what the child wants.
Although single parenthood has become more common, it is important to remember that another person had to be involved in creating the child and the law gives that person certain rights (and responsibilities), regardless of what your preference may be or the status of your relationship with the other parent.