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THE BASICS OF CUSTODY & VISITATION IN NEW YORK Child Custody: "Legal custody" is the right of a parent to make decisions regarding the child’s health, education, religion, and discipline, while "physical custody" defines the parent which whom the child or children will reside. Custody is determined by the court; when there is a separation agreement or Stipulation of Settlement (the agreement negotiated between the parties to a divorce) the private arrangements are generally approved. Courts decide custody by determining the "best interests" of the child and considering (1) a parent’s fitness; (2) the relationship between parent and child; and (3) influences on the child’s growth and development. A judge may weigh the preference of a child based on age and maturity; prior to twelve a child’s preferences have limited influence. Courts are very reluctant to separate siblings in the absence of an overwhelming need. New York prohibits determinations based on gender and men are increasingly being granted custody. There are, basically, three types of custody, but within each title there is little limit to how the custodial arrangement will be structured: Defined in section 9 of the Federal Child Support Guidelines as a situation where each spouse “exercises a right of access to, or has physical custody of, a child [of the marriage] for not less than 40 per cent of the time over the course of a year.” shared custody is actually a variant of joint custody in which each parent has periods of physical custody of the child generally intended to divide the time as close to equally as is practical. To give this relationship its best chance of success (and to be fair to the child) the parties generally need to live in close proximity to each other so the child is always close to school and friends. Although sole custody is favored in New York, joint custody is appropriate when the parties state they can cooperate on issues relating to the children. Unfortunately, in order to reduce legal costs and speed the process, couples often agree to joint custody while truly being unable to parent together, thus making for future problems. Visitation: Visitation is viewed as part of the joint right of the child and non-custodial parent to an ongoing relationship. The love and guidance of the non-custodial parent is highly valued and promoted by the court in the absence of any factors which would be harmful to the child. Rel ocation (with the children): The Courts use a "best interests of the child" standard to decide whether a parent will be able to re-locate away from the geographic area where the non-custodial parent resides. To determine the "best interests of the child," the courts utilize the approach adopted by the New York Court of Appeals in Tropea v. Tropea, 87 N.Y.2d 727, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996). The court will consider:
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Sole Custody - An arrangement whereby only one parent has physical and
legal custody of a child and the other parent (generally) has rights to
visit with the child.