A lot can change in the 18 years parents are officially responsible for the care and wellbeing of their minor children. Marriages and other family structures can unravel. In these instances, the biological/adoptive parents, other relatives, or the courts must determine who will be legally responsible for the ongoing care of any children of that union.

How is custody determined?

In some divorces, both parents discuss who, when, and how much access each will have to their children. In these instances, both parents have equal rights to their minor children’s physical and legal custody. If the courts have to intervene, judges will award custody based on what they see as being in the best interests of the child or children.

What does legal custody mean?

Legal custody is the right a parent or parents have to make important decisions about their minor children’s care, including decisions regarding medical care, education, and even religious upbringing. In New York, a judge can award joint legal custody, permitting both parents to make major decisions about the child together. Regardless of which parent the child lives with, both must agree on these decisions.

If the judge gives one parent sole legal custody, that parent has the right to make major decisions for the child without the other parent’s approval.

What does physical custody mean?

Physical or residential custody indicates where the child or children live and who is responsible for their actual physical care and supervision. A judge can give both parents joint physical custody, in which case the children may live with each parent for an equal or agreed-to amount of time. If one parent or other relative is awarded sole physical custody, the children live with this adult more than 50% of the time. The non-custodial parent is then awarded “visitation.” Grandparents and the child’s siblings may also ask the court for visitation, which will be awarded at the court’s discretion.

Can you change an existing custody order?

Existing orders of child custody and visitation may be adjusted by petitioning the court that originally issued your custody order, but there are no guarantees. To modify an original order of child custody in New York, you must show the judge that there have been:

• “Substantial and significant” changes in circumstances since the original order was issued; and
• that your proposed change will be in the best interests of your child or children.

While it is possible to file a petition to modify custody yourself, the bar to change is high. So, even the New York courts advise at least discussing the matter with an attorney to ensure all bases are covered. This is because, as the person seeking to change the custody order, you bear the burden of showing the court that it would be best for the child if custody were modified, changed, or completely reversed. You must persuade the judge that if Parent A to whom custody was awarded originally is now no longer the better parent for the welfare of the child, a change of custody should be made to Parent B.

How long does it take to get a custody modification?

How long it takes to secure a modification of custody depends on many factors, including whether the custodial parent or relative opposes the change. At the outset of any custody petition, it is impossible to know what arguments or tactics the other side will use to prolong the process and delay or complicate the case. This includes initiating frivolous litigation or otherwise disturbing the orderly petitioning process.

Modifying custodial/visitation orders can be complicated

Navigating any joint decision with an ex or soon-to-be-ex can be complicated. Even more so when children are involved. If you have questions about your current custody/visitation or would like to learn more about a possible modification, let’s talk. I’m Dan Stock, and you can call me at 475-232-4105 or email me at dhstock@danielhstockpllc.com to schedule a consultation.