What Goes in Child Custody Agreements and Orders?
Issues pertaining to child custody tend to represent some of the most legally complex and emotionally challenging matters addressed in marriage dissolution proceedings. If you are preparing to commence divorce proceedings, and are a parent, you need to understand the essentials of what goes into a child custody agreement or court order.
New York Family Law Courts encourage divorcing parents to attempt to reach an agreement in regard to child custody and visitation or parenting time. The theory is that being able to reach an agreement regarding these fundamental issues makes it more likely that divorced spouses will be better able to co-parent into the future. Effective co-parenting is deemed highly beneficial to a minor child.
The Best Interests of the Child Standard
The first factor that you need to understand when it comes to child custody agreements and court order is the standard utilized in New York when it comes to custodial matters. The state of New York utilizes what is known as the best interests of the child standard when it comes to matters pertaining to child custody and visitation or parenting time. Simply put, the provisions of a child custody agreement or court order must be in the best interests of a child. The rights and desires of the parents take a secondary position.
What is deemed in the best interests of a child is ascertained on a case-by-case basis. The court considers a variety of compelling factors when analyzing what is in the best interests of a child in a particular case when it comes to custody issues.
Examples of what a court will examine when determining the best interests of a child in a custody case include the overall physical, mental, and emotional health of the parties. The court may also consider which parent historically has been the primary caretaker of the child. There court may look at the current residential situations of the parties.
One factor that a court is likely to consider when making a custody decision, or approving a custody order, is which parent is more likely to support and encourage parenting time with the noncustodial parent if granted primary residential custody of the child.
You need to keep in mind that even if you reach an agreement with the other parent regarding child custody, the court must still approve it. The court will examine the agreement you reach to ensure that it is in the best interests of the child. Normally, a court will approve the agreement of parents when it comes to child custody, but it cannot be an arrangement that fails to foster the welfare of the child.
One aspect of a custody agreement or court order is establishing what is known as legal custody. Legal custody is the designation of a parent to make major life decisions for a child. Major life decisions include such matters as education, religion, and healthcare.
Legal custody can be jointly or solely exercised. In other words, one or both parents can exercise legal custody of a minor child.
Residential or Physical Custody
A custody agreement or court decree necessarily addresses which parent or parents will have the right to exercise residential or physical custody of a child. This component of an agreement or order designates which parent or parents will provide a child a residence.
As with legal custody, there are different derivations of residential or physical custody. Residential custody can solely awarded to one parent or jointly awarded to both parents. Oftentimes, when residential custody is jointly awarded, one parent is designated as the primary residential custodian of a child. Designating one parent as having primary residential custody is thought to provide a greater degree of stability for a child.
Visitation or Parenting Time
Another vital component of a custody agreement or court order is the provision for visitation of parenting time. The noncustodial parent, or the parent who does not have primary residential custody, is entitled to regular and reasonable visitation with a child.
The concept of parenting time oftentimes is what guides the development of a visitation agreement or order. Parenting time has somewhat replaced the concept of visitation. This has occurred because a parent should not be relegated to the status of a visitor in the life of his or her child.
Seek Legal Advice
As mentioned previously, custody-related issues are emotionally charged and legally challenging. For these reasons, you are best served seeking legal advice and assistance if you are contemplating ending your marriage and you are a parent.
The first step in obtaining legal assistance is scheduling what is known as an initial consultation. During an initial consultation, an experienced divorce lawyer will provide an evaluation of your case, including matters associated with child custody, visitation, and child support. You will be able to ask questions about your situation. As a general rule, there is no fee charged for an initial consultation with a New York divorce lawyer.