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Are There Different Types Of Custody In New York?


Lawyers often distinguish legal custody and physical or residential custody. Physical or residential custody concerns where the child or children live. If a child spends more time with one parent that parent has physical or residential custody. Obviously, in most cases children of split families spend time with both parents. New York has begun to talk about “parenting time” rather than custody and visitation. If children are with their father on weekends and with their mother during the weekdays, then we designate the weekend as the father’s parenting time and the weekday as the mother’s parenting time. I sometimes visualize a wall calendar that we color with pink and blue highlighters. This can help us visualize the schedule. There are limitations to this conceptualization.

For example, if a child plays little league during the week and both parents attend, is it really just one parent’s parenting time? Both parents cannot enjoy this overlapping time with their child. More important, the child can enjoy the same time with both parents. Likewise, children are not always with one parent or the other. When a child attends school or does a sleep over with at a friend’s house, an order may say he or she is in one parent’s care. But in reality, the child is in the care of either a school or the friend’s parents. In addition to physical or residential custody, or parenting time, which places the child in the care of one parent or the other for finite and fixed periods of time, New York cases distinguish between joint legal and sole legal custody.

In New York the term “joint custody” generally is used to refer only to joint legal custody, or joint decision making. (Bast v. Rossoff, 167 Misc.2d 749 [Supreme Court New York County 1995] affirmed as modified on other grounds 91 N.Y.2d 723 [1998]). One way we can understand what courts mean by joint legal custody is to look at cases where courts find it to be inappropriate to award joint legal custody. For example, in Mahoney v. Regan, (100 A.D.3d 1237 [3rd Dept. 2012] lv den 20 N.Y.3d 859 [2013]), the court determined an “inability to communicate effectively [ ] render[s] joint custody infeasible.” Sometimes parties write a more comprehensive definition of joint legal custody into their order. For example, in Sequeira v. Sequeira, (105 A.D.3d 504 [1st Dept. 2013] lv den (24 N.Y.3d 918 [2015] cert den 136 S.Ct. 81 [2015]) the parties agreed to equal input with respect to all major decisions, including education. Unfortunately, they did not state what was to occur should they be unable to agree leading to extensive litigation.

Before we leave this question, we should consider temporary custody. Children must live somewhere after their parents separate and before the court can conduct a trial. Absent an agreement, the court must generally conduct a hearing before it determines the custodial arrangement. (S.L. v. J.R., 27 N.Y.3d 558 [2016]). We often have temporary orders to create order to what might otherwise be a very chaotic circumstance.

What Are The Rules Or Restrictions For Relocation Of A Parent Due To Work Or Other Factors?

Relocation cases pit the interests of a custodial parent who wishes to move away against those of a noncustodial parent who has a powerful desire to maintain frequent and regular contact with the child. (Tropea v. Tropea, 87 N.Y.2d 727, 736 [1996]). The Court of Appeals eschewed any single factor to be treated as dispositive or given such disproportionate weight as to predetermine the outcome of a relocation case. (Tropea v. Tropea, 87 N.Y.2d 727, 738 [1996]). The court said in some cases, “the loss of midweek or every weekend visits necessitated by a distant move may be devastating to the relationship between the noncustodial parent and the child.” But the court also stated there are also “cases where less frequent but more extended visits over summers and school vacations would be equally conducive, or perhaps even more conducive, to the maintenance of a close parent-child relationship, since such extended visits give the parties the opportunity to interact in a normalized domestic setting.” The court held “each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child.” (Tropea v. Tropea, 87 N.Y.2d 727, 738-739 [1996]).

Tropea then listed several facts a court addressing a relocation case might consider. These include “the custodial parent’s stated reasons for wanting to move,” “the noncustodial parent’s loss of access,” ” the feasibility and desirability of a change in custody,” “the good faith of the parents in requesting or opposing the move,” “the child’s respective attachments to the custodial and noncustodial parent,” “the possibility of devising a visitation schedule that will enable the noncustodial parent to maintain a meaningful parent-child relationship,” “the quality of the life-style that the child would have if the proposed move were permitted or denied,” “the negative impact, if any, from continued or exacerbated hostility between the custodial and noncustodial parents,” and “the effect that the move may have on any extended family relationships.” (Tropea v. Tropea, 87 N.Y.2d 727, 740 [1996]). The court acknowledged that other factors might be relevant in other cases.

More than twenty years later, Tropea remains good law. Additional factors that courts have used to help decide relocation cases include the wishes of the child, (Turvin v. D’Agostino, 152 A.D.3d 610 [2nd Dept. 2017]), separation from half-siblings, (Turvin v. D’Agostino, 152 A.D.3d 610 [2nd Dept. 2017]). A parent seeking to relocate should present a detailed plan to the court. One court noted the mother’s application to “relocate to Florida was less of a plan and more of an amorphous idea.” (Salena S. v. Ahmad G., 152 A.D.3d 162 [1st Dept. 2017]). One thing a parent should not do is to relocate the child without advanced notice to the other parent. In Finkle v. Scholl, 140 A.D.3d 1290 [3rd Dept. 2016]), the parents worked out a roughly equal arrangement on their own. Then, without advance notice to the father, the mother withdrew the child from school and relocated with her from Delaware County to Saratoga County. In the ensuing litigation, the court awarded custody to the father.

A fact pattern that occurs often involves the parent who seeks to move to get away from alleged domestic violence. This often involves a credibility contest about whether the domestic violence is the real cause of the moving parent’s wish to leave, or feigned or an excuse to hide the moving parent’s real reason for moving. In Hill v. Dean, (135 A.D.3d 990 [3rd Dept. 2016]), the court credited the mother’s claim that the father was controlling and verbally abusive throughout the relationship. The court concluded the record established “that the mother did not relocate to separate the father from the child, but instead acted in good faith to escape the threat of domestic violence and obtain the support of family members residing in North Carolina.”

By contrast, in Jeanne Marie O. v. Richard P., (94 A.D.3d 1346 [3rd Dept. 2012], the court did not credit the mother’s claim that she relocated to escape domestic violence. The court noted that several orders of protection had been dismissed. The lower court found the mother’s true goal in relocating was to minimize the father’s parenting time with the children and obtain a tactical advantage in the divorce action. The court awarded temporary custody to the father.

For more information on Child Custody Cases In New York, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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