New York Legal Custody Cases

Legal custody is one of the most important parts of a custody case.  Experienced custody attorneys like Daniel Szalkiewicz and Cali Madia help their clients fight for the right to make decisions about their children’s well-being and decisions that can affect their future.

What is Legal Custody

Legal custody gives a parent the authority to make major life decisions.  Parents can have sole legal custody or joint legal custody.  Another option is for parents to have joint legal custody with one parent having the final say. 

Why is Legal Custody Important?

Legal custody gives the parent the right to make all major life decisions concerning their children.  Legal custody plays a role in all parts of a child’s life including:

• Schooling: Do you want your child to attend private school or public school?  Which school district should your child enroll in?

• Medical decisions: Should your child be vaccinated for Covid-19?  If your child breaks his arm and the doctor recommends either a cast or surgery, who decides?  Should your child be placed on medication for ADHD?

• Travel:  Should your child be allowed to travel out of the country for vacation?  

• Camps:  Should your child go to sleep away camp or stay at home?  For how long will they be allowed to go to camp?

• Sports:  Do you want your child to play football or do you think it is too dangerous?  Is enrolling your child in basketball after school going to take away from the time they will spend on homework?

• Gender pronouns:  What gender pronouns will go on your child’s school application or medical records?

• Religion: Will my child be raised Jewish, Christian, or agnostic?

Without legal custody, a parent may not have a say in any of the important decisions that affect a child’s life.

What Situations Does Legal Custody Not Apply?

Legal custody does not apply to the day to day decisions concerning your child.  What the other parent feeds them during their parenting time, what they wear, how they get home from school, what time they go to sleep are all decisions that the parent who has visiting time is able to make without interference of the other parent.

Legal custody is about major decisions, not minor ones.

Sole Legal Custody Allows a Parent to have the Final Say

Sole legal custody allows a parent to make the decisions for the child without the interference of the other parent.  Often courts require that the non-custodial parent be made aware of the issue prior to the custodial parent making the decision.  Once made aware, the only way to stop the parent from acting is to file an emergency court order.  

Joint Legal Custody is Not Always Available

Joint legal custody is only appropriate between “relatively stable, amicable parents behaving in mature civilized fashion," who are capable of cooperating in making decisions on matters relating to the care and welfare of children. It is inappropriate, however, when the parties have demonstrated an inability to communicate and cooperate on those matters.

If the parties have joint legal custody and are unable to reach a decision on a major life choice, they are required to go before the court, a mediator, or a parental coordinator to have the final decision made. With whom the parties must meet is generally set forth within the parents’ custody agreement.

Sole Legal Custody vs. Joint Legal Custody with the Right of Final Say

Couples often argue between joint custody and sole legal custody.  A third option is available that helps resolve most cases.  Where one parent is clearly the primary caretaker, but the other parent is insisting on joint custody, the parents can agree on joint legal custody with the right of final say.  In this scenario, both parents are consulted on all major life decisions, but one parent has the final say when there is an impasse.  This avoids court appearances in the case of a dispute but ensures both parents are able to offer input.  

Determining Legal Custody

A parent who is granted physical custody is normally granted legal custody as well.  The court will apply the same best interest of the child standard as it does for physical custody and modifications of previous custody agreements.

When deciding legal custody, the courts consider:

1. the parent’s physical and mental health

2. the parent’s use of drugs and alcohol;

3. the parent’s sexual activity

4. the parent’s lifestyle;

5. the neglect, abuse, or abandonment of the parties’ child or children;

6. the physical, sexual, or emotional abuse of the other spouse;

7. the parent's relative economic status;

8. the willingness of each parent to foster the child's relationship with, and access to, the other parent; and

9. the parent’s criminal record, if any.

Each of these factors is looked at as a whole, and no one factor determines legal custody.

Legal Custody is Decided in Supreme Court, Family Court, or by Agreement

Legal custody can be decided in three ways.  In a divorce proceeding, the Supreme Court will decide which parent should have sole custody.  If the parties are not married or chose to bring a custody petition in family court, the family court judge will have the right to award legal custody to one parent.  The parties can also enter a stipulation settling their custody dispute.  The stipulation will detail the terms of the parents’ agreement about who has decision-making authority. In order for the agreement to be binding and enforceable, it must be ordered by a judge.

Legal Custody is Not All or Nothing

Even if a court awards one parent sole legal custody, the court can still grant the other parent the right to make selected legal decisions or can limit the legal decision-making of the other parent.  If the Court believes that one parent is abusing the medical decision process, for instance, the judge has the power to order the parents to consult with a doctor before making any decisions. 

The parties can also agree to limit one parent’s sole legal custody.  In a settlement document, the parties can provide one parent with all decision-making authority over school matters and the other parent with decision-making authority over matters of religion.  An agreement allows the parents to fight for what is important to them while sharing responsibility on other issues.

Parents Automatically have Joint Legal Custody

Until a court issues an order to the contrary, married parents share custody as a right.  To change the joint custody situation, a parent will need to file either a pendente lite motion in Supreme Court or a motion in Family Court for temporary custody.  These motions are typically filed at the start of a proceeding or in the case of an emergency.

Experienced Joint Custody Lawyers Cali Madia and Daniel Szalkiewicz Are Here to Help

Our office understands that family is everything and will always fight for your ability to play an active role in your child’s life. We also understand that, because no two families are alike, the is never a one-size-fits-all solution to a problem. We take our time with each client to make sure we fully appreciate their wants and needs so we can best serve their interests in court.