In our first meeting with a client, the client will usually begin by declaring, "Get me custody of my children!"
Our aim is to get clients the resolution they want. For that reason, it's so important for clients to understand exactly what they're asking for. Confusion can crop up because some words have one meaning in plain English and a different, more nuanced definition under New York law.
"Custody" is a perfect example. In plain English, having custody means having the children living in your home. But under NY law, "custody" is a bit more complicated, with nuances you need to know if you're a parent proceeding with a divorce.
Under the law, custody is divided into two components: physical custody and legal custody.
Physical custody determines where the children live.
Legal custody gives a parent the power to make important decisions about the children's upbringing, including their schooling, medical care, and religious education.
In most cases, one parent's seeking physical custody doesn't spark a major conflict because it's usually clear to both parties that one of them doesn't have the time to be a full-time parent. In other cases, the parties agree to give physical custody to one parent so the children can continue at their current school.
It's disputes over legal custody that often become messy and contentious. You can imagine a father acknowledging that full physical custody wouldn't be the right fit for him since he couldn't be at the office for work and at home parenting the kids at the same time. But ask that same father to give up his decisionmaking power over the children, and that's when real conflicts can appear.
Think, as well, about what happens when one parent stands firmly against vaccines. Or when one parent wants to send a child to South America for two years to spread word of the Mormon Church.
Whether the child gets his vaccines or is sent on a Mormo mission depends on how legal custody was resolved.
For clients who aren't aiming for exclusive parenting power and feel comfortable coordinating future parenting decisions with their former spouse, there are several tried-and-true approaches:
Parents can split legal custody 50/50, with a commitment to communicate with each other and work out future parenting decisions.
In a stipulation (agreement) between the parties, we can even add a provision resolving what happens if the two parties can't agree on a future parenting decision. Our agreement could grant an expert with knowledge of your children the ability to cast a tie-breaking third vote — for example, giving your children's doctor the tie-breaking vote on medical decisions and their school teacher the tie-breaking vote on educational matters.
In some cases we can secure full legal custody for our client, on the condition that they inform the noncustodial parent of major parenting decisions by phone or email.
A rarer but also effective option is to divide the "spheres of influence" (medical, educational, and religious decisions) into three separate spheres, agreeing, for example, to grant power over future educational and religious decisions to the mother and medical decisions to the father.
The point is not to know upfront precisely how you want to divvy up custody of your kids, but simply to know that "custody," under the law, is a more nuanced concept.
If you want custody and want to get ahead of the game, think about what custody resolution you want your attorney to pursue — what arrangement would work best for you and your kids.
