Child Custody

The McCarthy Fingar Team

Custody of minor children is perhaps the most emotional issue in the divorce process. The experienced lawyers in our Matrimonial & Family Law group understand the importance of reaching a proper resolution on child custody. On this page, we provide answers to several frequently asked questions relating to child custody.

Can my spouse and I agree on custody without court intervention?

Answer: Yes. Through collaborative law, mediation or negotiations, attorneys and mental health professionals often work with divorcing parents to develop a parenting plan that will maximize the child’s time with each parent. Parents are encouraged to agree upon a parenting plan that is in their children’s best interest.

What is child custody?

Answer: There are two parts to custody. One is the right and responsibility to make decisions for a child, known as “legal custody”. The other is where a child will live, known as “physical custody”. Child custody matters in New York affect children under the age of 18.

What is the difference between joint custody and sole custody?

Answer: In joint custody, parents make major decisions about the child together, such as decisions regarding health, education, and religion. Day-to-day decisions are made by the parent who is physically caring for the child at that time. In sole custody, only one parent has the right to make the major decisions affecting the child. If the parents cannot agree upon joint custody, the court will usually determine which parent should have sole custody of the child. How does the court determine custody?

Answer: No one factor is determinative in making a child custody award in New York State. In making a custody determination, New York courts must weigh and balance the “totality of the circumstances” to determine what is in the child’s “best interest”. A New York court is required to consider many factors in determining custody, such as:

  • work schedules of the parents;
  • the mental and physical health of the parents;
  • the care and affection shown to the child by the parents;
  • the atmosphere in the homes;
  • the effect of a separation of siblings;
  • the wishes of the child, if the child is old enough;
  • the length of time the present custody arrangement has continued;
  • the relative stability of the respective parents;
  • the parenting skills of each parent, their strengths and weaknesses
    and their ability to provide for the child’s special needs, if any;
  • the ability and availability of the parents;
  • which parent has been the main care giver/nurturer of the child;
  • whether there has been domestic violence in the family;
  • the prospective educational probabilities;
  • the possible effect of a custodial change on the children;
  • the financial standing of the parents;
  • the parents’ past conduct;
  • the refusal of a parent to permit visitation and/or the willingness of a parent to encourage visitation;
  • unauthorized relocation of the parent and child to a distant domicile; and
  • making unfounded accusations of child abuse.

What is an “attorney for the child”?

Answer: In disputed custody cases, a New York court will often appoint an attorney for the child who will consult with the child, parents and other relevant individuals. The attorney for the child will then communicate the child’s wishes and concerns to the court.

If one parent has sole custody, can the other parent still visit with the child?

Answer: It is important for the child have a relationship with both parents. In most cases, courts will allow the noncustodial parent visitation, or “parenting time”, with the child. There are many different types of visitation that the court may permit. Visitation can be unsupervised, supervised, or therapeutically supervised, and may also involve a safe place of exchange or a monitored exchange:

Supervised Visits: The court will choose a neutral person to supervise the visits if there are serious concerns about a parent’s ability to act properly with the child or where there has been domestic violence.

Therapeutic Supervised Visits: A mental health professional supervises the visits. During the visits, the mental health professional may work with the parent to try to improve the parenting skills of the parent.

Neutral Place of Exchange: A safe location, such as a school, mall or police station, where a child is transferred from one parent to the other for visitation.

Can I seek child custody if I am not a parent of the child?

Answer: It depends. Grandparents, aunts, uncles, and other relatives may seek child custody where they can demonstrate the existence of “extraordinary circumstances”. They have to show the court that the parent(s) are not fit to care for the child. One example of where a court may award child custody to a non-parent is when the parent voluntarily relinquished care and control of the child and the child resided in the household of the relative for an extended period of time. See also – top

The McCarthy Fingar Approach in Child Custody Disputes

Whatever the cause of a child custody dispute, the lawyers in our Matrimonial & Family Law group will bring their many years of experience to develop a strategy on how the matter should go forward.

Contact Us

If you think you may require the assistance of McCarthy Fingar’s Matrimonial & Family Law group, please contact Kristen Mackay Pennessi by email ( or by phone (914-385-1033).

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