Authored by Randall Malone
New York courts usually award sole custody to the parent that has been the child's primary caregiver during the years prior to the custody action. However, being the parent or guardian most responsible for parenting the child does not always guarantee sole custody. The court considers other factors, as well, such as how long a child has lived with one parent, how well a parent or guardian is parenting a child and if neglect, abuse or domestic violence has taken place. In cases where the child is able to express a preference, the court sometimes takes the child's testimony into consideration, too, depending on the age of the child.
In New York, the two main aspects of custody are legal custody and physical custody. Legal custody refers to control over major life decisions, such as education or medical issues, whereas physical custody refers to which home the child primarily resides. In many cases, New York courts give sole legal and physical custody to one parent and visitation rights to the other parent.
Sometimes (and more often than in earlier years), courts will award "joint legal custody," meaning that both parents will have control over major life decisions. However, if the divorce is not amicable and parents have a history of poor communication, the court will not be able to award joint legal custody. In addition, shared custody is gaining ground in many courtrooms in New York.
It is also important to note that in sole custody judgments, there is no legal preference for either father or mother. However, for fathers seeking custody in family court, paternity must be determined by either the court or admitted in an official "Acknowledgment of Paternity" form.
For a nonparent, such as a grandparent seeking custody, the nonparent must prove that the natural parents are unfit to parent the child or children or have abandoned the child or children.