Do Mothers Always Get Custody In New York Family Court? And Other Myths

In this article, you will discover:

• Whether fathers are at a disadvantage in New York custody cases
• The different forms of joint custody in New York
• Whether a child can choose which parent to live with in a NY custody case

Myth #1: Fathers Are At A Disadvantage In New York Family Court Child Custody Cases

Fathers and mothers have equal rights to their children. There’s nothing in the law that favors mothers over fathers. Different judges may have different prejudices in that regard, but most judges tend to be fair.

However, the parent who has physical custody, who the child lives with at the beginning of the case, definitely starts with an advantage. If the parents are apart, the children usually live with the mother, but approximately one-quarter to one-third of the time, it’s the father.

It’s worth noting that while the parent with custody at the outset starts with an advantage, that doesn’t necessarily determine the outcome of the case.

Myth #2: Mothers Always Get Custody In New York

It’s not true that mothers always get custody in New York. There are many cases where the fathers get custody. The parent that starts with physical custody has an advantage in getting legal custody. More often than not, it is the mother. However, if the children are living with the father from the age of 10, the father starts with an advantage.

Myth #3: Joint Custody In New York Always Means An Equal 50/50 Parenting Time Split

There are three kinds of joint custody in New York:

1. Joint physical custody. When people think of a 50/50 time split, that’s actually joint physical custody of the child. In that form of custody, the child would share equal or almost equal time with each parent.
2. Joint legal custody. Joint legal custody means joint decision-making. In a joint legal custody arrangement, the parents must agree on major decisions regarding the health, education and welfare of the child. That would be true even if the child lives with one of the parents.
3. Joint legal custody with final decision-making granted to one parent. The third arrangement is joint legal custody, but with final decision-making granted to one of the parents. In this arrangement, the parents must try to reach an agreement on major decisions. If they can’t reach an agreement, after a good faith effort, one parent would have the final decision-making authority. That’s typically the parent with whom the children live if it’s not a 50/50 split.

Myth #4: A Child Can Legally Choose Which Parent To Live With In A New York Custody Case

The judge or referee makes that decision, not the child. If it’s a contested case that goes to trial, the judge or referee will usually interview the child in their courtroom or chambers, away from the presence of the parents.

The judge or referee will want to know the child’s preferences. How much time does the child want to spend with each parent? Who do they want to live with? The answers to these questions are not binding on the judge. They are one consideration in the whole category of the best interests of the child.

The older a child is, the more likely it is that the judge or referee will consider their opinion. By the time a child reaches the age of 17, they can essentially decide where they want to live.

If the judge is dealing with a teenager, it’s rare for the judge to tell the child they can’t live with the parent of their choice. There’s a good reason for this: in most cases, the child can vote with their feet. They may even be able to drive to their chosen parent’s house.

Myth #5: You Can Legally Withhold Visitation If Your Ex Refuses To Pay Child Support In New York

Child Support and visitation are two separate issues with separate petitions if someone wants to file them. Different jurists deal with them. Referees and judges deal with custody visitation. Magistrates or judges deal with child support cases.

In a child support case, if one parent is bringing a violation against the other because they’re not paying child support, a defense to the case could be that the parent bringing the violation is withholding visitation. The withholding of visitation would have to be egregious to wipe out child support totally, but it is a possible defense.

If someone is not paying child support, one of the worst things you can do is to withhold visitation. Instead, you should file a petition with the judge. The judge will order them to pay the child support, or they could be incarcerated.

Notes From The Field: Other Pervasive Myths About Child Custody

There’s a pervasive myth that judges are biased one way or the other, that they decide a case based on whether they like a party or not. I haven’t found that to be the case. Instead, I’ve discovered that judges try to make fair decisions.

Another myth is that grandparents have no rights. Grandparents have a right to file for visitation or custody in a case. When grandparents file for visitation, the judge makes a decision based on the best interest of the children. They can be granted visitation, even if a parent doesn’t want them to have it.

If a judge decides it’s in the best interest of the child, grandparents can also be granted custody, although that’s a much more difficult case to make. Anytime someone who’s not a parent tries to take custody away from a parent, they have to prove exceptional circumstances.

Still, grandparents can file for custody, and sometimes they win it. For example, it could be because the parents have drug problems or there’s some other serious reason the children shouldn’t be in their care.

Perhaps another misconception is that siblings don’t have a right to visitation. They actually do, and they can file for visitation if they’re not being given contact with their siblings. Those are the major myths that I can think of at this point.

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