How To Get Full Custody of a Child in New York
A common question in divorce cases is, “how do I get full custody of my kids?” There’s no simple answer to this question, as the custody laws in New York have multiple layers. There’s really no legal definition of “full custody” in New York State - the terms are sole custody and joint custody, and the types of custody are physical and legal custody.
It’s important to understand 1) what the different types of custody are in New York State and 2) what the court considers when granting a custody and visitation arrangement.
The guiding principal in New York custody law: the best interests of the child
Although divorce and custody cases can sometimes get very contentious, the main thing the courts are concerned about when it comes to granting custody and visitation right are the best interests of the child or children involved.
How do custody and visitation work in New York State?
Custody is the legal responsibility for a child’s care. Physical (or residential) custody is where the child lives. Legal custody is who has decision making power over things like education, religion, health care, and general welfare of the child.
Visitation is a term related to physical custody, and is when a court grants a non-custodial parent (the parent who does not have primary physical custody) or caregiver the right to spend time with the child. Grandparents and other non-biological caregivers can request visitation, too. A visitation agreement will stipulate a regular visitation schedule (for example, Tuesday evenings and every other weekend). It will also stipulate a schedule for holidays and summer break/school vacations.
The way this is split up is where the terms “sole custody” and “joint custody” come into play. Sole custody means that Parent A is granted the authority to make decisions about the child - the non-custodial Parent B may have the right to receive certain information, like medical or education information, but they don’t make the decisions. Joint custody means that both parents share the authority to make decisions about the child.
What are the types of custody in New York State?
The judge will look at a number of factors to determine what custody or visitation arrangement is in the best interests of the children involved.
The courts can split up custody a number of ways. Here are some examples:
The court grants joint physical and joint legal custody: children split their time 50/50 (or as close as possible) between both parents. Both parents have the authority to make major decisions involving the children (medical, education, etc.), and must consult and agree on these decisions.
The court grants sole physical custody and joint legal custody: Parent A is granted sole physical custody (the custodial parent), and the children live with them most of the time. Parent B, the non-custodial parent, is granted visitation rights. Both parents have the authority to make major decisions involving the children (medical, education, etc.), and must consult and agree on these decisions.
The court grants sole physical custody and sole legal custody to one parent: Parent A is granted both sole physical custody and sole legal custody. The children live with them, and they have the authority to make the major decisions for the children. Parent B is granted visitation rights, and has the right to know information about their children (such as school, medical, religious information), but has no authority over the final decisions.
(The above are just a few examples, and are not a full list of the different ways courts grant custody in New York.)
This is why having an experienced family law attorney like The Office of Sharon K. Covino is so important to your custody case. You’ll need someone on your side who’s able to fight fiercely for your child’s best interests, and who can be a trusted ally in representing your rights as a parent.
Does sole physical or legal custody for one parent mean no visitation for the other?
Absolutely not. The courts want what’s in the best interests of the children, and having both parents involved in their lives is generally seen as a positive. The non-custodial parent is typically entitled to meaningful visitation with their children, with the exception of extreme circumstances.
If Parent A is granted sole physical or legal custody, the court will also come up with a visitation schedule for Parent B. Visitation schedules vary a lot from case-to-case and can be based on parents’ work schedules, kids’ school and extracurricular schedules, and other factors - this is another reason why having a good attorney is essential. If you’re the non-custodial parent, you’ll want someone who’ll negotiate for you to get as much time as possible with your kids.
In some cases, like when there’s a history of domestic violence, child abuse or neglect, or drug and alcohol abuse, the court may grant supervised visitation to the non-custodial parent. In extreme cases, the court will terminate a parent’s visitation rights entirely - this happens very rarely.
Is it true that mothers get custody and fathers don’t?
This is a common myth in family law. Courts use the “best interests of the child” test and look at many factors when determining a custody arrangement. It’s untrue that mothers are automatically granted sole custody in New York State based on their gender.
If we both share custody, do I still have to pay child support?
Even if joint physical custody with a 50/50 time split is granted, child support is going to be a part of your divorce. Child support is mandated by New York State law. The courts use a formula to calculate who pays it and how much they pay.
Child support is considered to be in the best interests of the children, and is not a “punishment” for one parent over another.
The court may allow for a modification of child support in the case of illness or loss of employment - The Law Office of Sharon K. Covino can help you file for child support modifications.
If your coparent stops paying child support, we can also seek options for enforcement - get in touch here. The courts take nonpayment of child support very seriously.
However, nonpayment of child support is not grounds to deny visitation to your child’s other parent. The courts see visitation and child support as two seperate issues.
How do courts decide who to give custody to in New York?
Courts use a number of factors to determine what custody arrangement is in the best interests of the children. These include, but are not limited to,
Primary caretaker - who was the primary caretaker prior to the divorce?
Drugs and alcohol - does either parent have substance abuse issues?
Mental and physical health of the parents
Spousal abuse - Courts obviously take a history of domestic violence or spousal abuse into consideration when granting custody
Where the child’s siblings live - Courts try to keep siblings together as much as possible, and this could affect custody arrangements if half-siblings or siblings live with one parent
Finances - If a parent’s financial situation could lead to unstable housing or homelessness, that could affect the custody arrangement
Conditions in the home environment - if a home is unsafe (for example, weapons or drugs in the house, Parent A has a new partner who’s violent towards them), a court will take that into consideration
There are many other factors courts consider when making their judgement. There are no hard-and-fast rules that apply to every case. This is why it’s essential to have an experienced attorney by your side. It’s your attorney’s job to aggressively advocate for your strengths on each of the factors the court is considering when deciding your custody case.
Is it possible to change a custody agreement after it’s been decided?
The answer is yes, but you’ll have to prove a "substantial change in circumstances" that warrants a change in custody, and that it is in the "best interest of the child" to change custody. A “substantial change” can include things like:
Abuse or neglect of the children
Criminal conduct
The other parent is diagnosed with a serious medical condition and can no longer care for the children
Alcohol or drug abuse
How do I find a lawyer to file for custody in New York?
The Law Office of Sharon K. Covino practices in Staten Island, Queens, New Jersey, and New York City, with a focus on in Child Custody and Support, including emergency applications for custody, custody petitions, support modification, custody modifications, and family offense petitions.
Get in touch with us for a consultation about your case here.
The Law Office of Sharon K. Covino
Sharon K. Covino is a dedicated and fierce advocate for her clients. She founded The Law Office of Sharon K. Covino with the belief that in the most difficult times of their lives, such as divorce or custody cases, clients deserve steadfast advocacy and supportive legal counsel.
Ms. Covino is a seasoned attorney with extensive experience in both the New York City criminal and family court system. She focuses on aggressive options for her clients’ cases, while offering them compassionate support during a stressful and difficult time.