For parents who are going through a divorce, child custody is often one of the most important issues that will need to be addressed. However, these matters may also affect unmarried parents, and when a couple separates, or in situations where parents were never together in a long-term relationship, they will need to determine how they will handle issues related to their children. It is important to understand exactly what is meant by the term "child custody," and this will ensure that parents know about their rights and responsibilities and the steps they can take to protect their children's best interests.

Child Custody and Visitation

As in most states, New York courts will address two separate issues related to custody of children, and these are commonly referred to as legal custody and physical custody. Legal custody refers to the rights and responsibilities of parents to make decisions about their child's welfare, and this includes matters such as education, medical care, and participation in religious services or activities. In New York, courts will generally presume that it is in a child's best interests to have both parents involved in these decisions, and they will typically award joint legal custody. However, there may be some situations where it will be more appropriate for one parent to have primary or sole legal custody, such as when the other parent has not been involved in making decisions related to their children or has been absent from their lives.

When a divorced couple shares a minor child, their divorce decree will unlikely remain in place until that child turns 18, especially if the child was young when the parents divorced. The reality is that circumstances related to their child and their finances will likely change over time and these changes can affect their original parenting plan, as well as the original child support obligations put in place by the court at the time the divorce was granted. In these situations, one or both parents may decide that they need to return to court in order to have the court’s order modified with necessary changes.

Child Custody/Parenting Plan Modifications

There are situations that may give rise to one or both parents’ desire to change the existing child custody plan with regard to their minor children. For example, as children grow older, parents may want to modify the schedule to meet the needs of the children’s activities. Once a court approves the parenting plan reached by agreement of the parties, or issues a parenting plan when parents cannot agree, it will remain in effect and cannot be modified unless there has been some kind of substantial change that merits a modification. Some of the common reasons why a modification request would be accepted by the court include:

• The custodial parent has relocated or wishes to relocate

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When a New York family court judge determines how child custody and parenting time should be divided between two parents, he or she does so under the best interest of the child doctrine. While the parents may agree overall about what is in their child’s best interest, it is not uncommon in these situations for the parents to have disagreements about what those specific interests should be.

This means if the parents cannot come up with a fair agreement between the two of them, the judge will need to make that decision for them. The following are some of the factors judges consider when determining child custody.

Co-Parenting Abilities

Even though the parents will no longer be living in the same house, they still need to be able to effectively co-parent together. There is no denying that co-parents may have minor disagreements from time to time – even parents who are still married do not always agree on parenting decisions – but it is important that the court be assured that both parents have the ability to work through disagreements and make the compromises necessary to reach decisions they both agree on. If one parent is unable to do that and instead consistently works against the other parent, this could indicate to the court that the parent is not putting the child’s best interest ahead of the parent’s own agenda.

There is no doubt that the COVID-19 pandemic has caused a deep division within the United States citizenry. Mandatory shutdowns, virtual learning for students, and mask mandates have all generated great debate among people across the country. Perhaps there is no greater disagreement than there is over the COVID-19 vaccines. The vaccine debate has grown from whether a person should or should not get the vaccine to whether or not a person is required to get the vaccine, as governments, businesses, and other entities have begun requiring employees to get vaccinated. Recently, that debate hit an Illinois family law courtroom and it is just a matter of time before New York family courts could also face the issue.  

Illinois Case

Last month, during a virtual hearing that was only supposed to be about child support, the family court judge overseeing the case randomly asked the mother if she had been vaccinated against COVID-19. The mother responded that upon the advice of her doctor, she had not received it because she has had adverse reactions to other vaccinations in the past. The judge responded that since she had not been vaccinated, she could not see her 11-year-old son until she was. The boy’s parents have had shared custody of the child since 2014. The father has been fully vaccinated.

The mother appealed the ruling and weeks later the judge reversed his decision and recused himself from the case. The intense media attention his original ruling made led to the discovery that the judge had asked parents in other cases he was handling if they were vaccinated and had also ordered some parents and children to be vaccinated.