Clients with children often ask me about the different custody arrangements that come with divorce as their children are frequently their main concern. Knowing the different scenarios that come with each arrangement is important for ensuring an outcome that best suits each couple and their children.
New York has several types of custody: true joint custody, joint custody with a residential parent, and sole custody. True joint custody, where the child spends an equal amount of time in both homes, is unusual. Logistically this is only possible if both parents live near each other and have schedules that allow for each of them to care for the child in equal proportions. The two parents also need to be able to work together to ensure that although the child lives in two homes, all homework is completed, appointments are scheduled and kept, etc. This kind of coordination is difficult when parents live together, never mind in separate homes, possibly with new spouses. While it can work, I have found in my practice that even with the best of intentions, the amount of time spent at each parent’s home usually becomes disproportionate over time.
Some families find that a nesting arrangement works best with true joint custody. This is where the children stay in the same home all the time and the parents take turns spending time in the home where the children live. This ensures that the children have a stable environment.
Joint legal custody with one parent being the residential parent is the more usual and frankly more practical scenario. This type of custody entails the child regularly living with one parent and the other parent having liberal visitation or parenting time. Both parents share equally in making decisions about the child’s health, education, and welfare. Normally in an emergency, whichever parent the child is with at the time will make any decisions and then inform the other parent.
With sole custody, only one parent has the authority to make decisions regarding the child’s health, education, and welfare. This is usually utilized when the parents cannot get along well enough for their child’s sake to make joint decisions or if one parent is incapacitated. Under this scenario, one parent would be able to unilaterally choose a school, caregiver etc.
Some parents mistakenly believe that if they agree to joint custody they will not have to pay, or will not receive child support. In relation to child support, New York State law dictates that if one parent were to have sole custody, the other would have to pay child support. Normally with joint custody in which one parent is the residential parent, the non-residential parent pays child support. The custodial parent is expected to pay their share of expenses for the child as well. Even in a scenario of true joint custody, the law in New York courts have held that child support must be paid. There are two cases on this point, Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 [3d Dept. 1998] and Bast v. Rossoff, 91 N.Y.2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998]. Bast made clear that even in shared custody cases, courts are required to identify the “primary custodial parent” and Baraby made clear that the parent with the substantially higher income does have to pay child support.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074
