How Child Custody Works In New York: Part Two
In Part One, I discussed some of the practices and procedures of reaching a child custody agreement in New York, focusing on physical custody and parenting time. Today, I’m broaching the practices and procedures of legal custody in New York, or who makes major decisions on behalf of the children.
Just like physical custody of the children, legal custody is also based upon the best interests of the children. The New York Courts expect both parents to make decisions that will benefit the children when it comes to medical, education and religion, along with extra-curricular activities. While parents don’t always have the best communication following a breakup or divorce, it is expected that the children’s wellbeing will be prioritized.
Regardless of the parenting time scheduled agreed upon by the parties or ordered by the court, the courts want both parents to have equal say in their children’s lives. For that reason, New York Courts push for joint legal custody, where the parties communicate regarding major issues that arise and try to come to a decision together. However, the courts are not unrealistic and do not want the parents to run back to court for every disagreement. That’s why many joint legal custody orders and agreements include terms for a tiebreaker.
How do tiebreakers work?
Although it may feel difficult or even impossible to properly communicate with a co-parent, the New York Courts want each parent the opportunity to learn of changes or updates and each have the opportunity to have their voices heard on the issue. After being informed and provided meaningful consultation, it’s possible that the parents will still remain at odds. At this point, one of the following tie-breakers would kick in.
Final Decision-Making: Child custody orders or agreements may grant one party the final decision, after meaningful consultation. It is normally the custodial parent who is granted “final say.”
Spheres of Influence: Child custody orders or agreements may grant different final decision-makings for each major sphere. For example, one parent may be granted the final say on education, while the other parent is granted final say on medical decisions.
Parent Coordination: Child custody orders or agreements may also provide that in the event of a disagreement the parents would meet with a parent coordinator, who would mediate the dispute and help the parties reach a decision together.
When is Sole Custody Appropriate?
Sole custody is usually only appropriate where communication between the parties is not possible. For example, if there is a history of domestic violence and there is presently an order of protection in place, this shows the courts that it is not healthy or productive to ask the parents to try and communicate. However, there are instances where orders of protection are in place and include something called a “carve out” to allow communication between the parties on behalf of the children. This is generally dictated by how severe the allegations were in the underlying criminal matter or petition for a family offense.
The New York Courts may also find that one parent is more or less qualified to make decisions regarding certain aspects of the children’s lives. For example, if one parent is an educator or a medical professional, they may be seen as the person more qualified to make educational or medical decisions on behalf of the children. On the opposite end of the spectrum, where one parent is a member of a religion that does not believe in certain medical treatments, like medication or blood transfusions, the courts may determine that he or she is less equipped to make medical decisions on behalf of the children.
What Does Final Decision Making Regarding Education Mean?
A parent with final decision-making authority for educational decisions may make decisions regarding what school the child(ren) attend, what classes they are enrolled in and the like. Decisions regarding public school versus private school, however, should be provided for separately, as it also involves significant child support add-on obligations.
What Does Final Decision Making Regarding Medical Decisions Mean?
Emergency medical decisions will be made by the parent who is caring for the child at the time. If a child suddenly becomes ill in one parents care, he or she has the right to seek immediate medical intervention by taking the child to a doctor, urgent care or emergency room. He or she would then have an obligation to immediately notify the co-parent of the incident and give them the opportunity to visit the child, wherever he or she may be. Any non-immediate decisions would be made according to the terms of the parenting agreement. If one parent has final medical decision making, he or she may decide if a child should have his or her tonsils removed, should be prescribed medication or should see a specialist.
How Do New York Courts Address Disputes Regarding the Children’s Religion?
It is not uncommon that the children’s religion has been determined prior to any custody disputes arising, though this is not always the case. In situations where the parents split up before a child’s birth or in their infancy and the parents are from different religious backgrounds, a dispute may arise as to how the child(ren) should be raised. In these instances, the court often allows the child(ren) to be exposed to both religions, without influence from the parents and decide for themselves as they reach the age of maturity.
For those couples who have decided to raise their child(ren) in a specific faith, a breakup or divorce will generally not undo that decision. For example, if the Mother is Jewish and the Father is Christian, but the parties discussed and agreed to raise the children Jewish, the children will be raised Jewish. The New York Courts show no preference from one religion to the other, but rather focus on decisions that are made for the children when the parents are still on good terms and will not reverse those decisions simply because the parents are no longer together.
When it comes to reaching an agreement on how decisions will be made, remember creativity is key. Where parties are willing to put their heads together with their respective attorneys and the courts, they can reach a different type of resolution that works for their specific set of circumstances.