Why You Need an Attorney for a Co-Parenting Agreement in New York
The terms ‘physical custody’ and ‘residential custody’ are used interchangeably in New York State. The parent with physical custody is responsible for the care and supervision of a child. If the Court decides to give joint physical custody, the child will live with each parent for an equal amount of time. If the Court decides on sole physical custody or sole residential custody, then one parent will be with the child for more than 50% of the time, leaving the non-custodial parent with visitation or parenting time instead of custody.
The parent with legal custody or decision-making custody has the right to make important decisions for the child such as medical care, education, and religious upbringing. The parent without legal custody cannot make these major decisions. If the Court grants joint legal custody, then the parents will make decisions about the child together. In a joint legal custody situation, it does not matter which parent the child lives with; both parents must agree on the decisions together. Read more about child custody here.
What is a Parenting Plan?
A parenting plan or custody agreement outlines how parents will share the rights and responsibilities of raising their minor children (under 18 years old).
Every parenting plan is different:
If a person’s fitness as parent is in question, then the Court may award one parent sole custody of the children. The parent with sole custody makes major decisions about the child. The non-custodial parent usually receives court-approved visitation. If one of the parents is unfit to raise children, then they will have either supervised visitation or no visitation at all.
In many instances, parents will share custody. When parents have joint custody, they make decisions for the minor child together. The Court cannot force a party to accept a joint custody plan, but Courts will often encourage it.
If the parents cannot agree on custody and visitation at the onset of the court proceeding, then one of the parties will request for the Court to issue a temporary order, which order will be in effect until the parents enter into an agreement or until the Court issues a final order after trial.
If the parents are unable to reach a custody and visitation agreement, the Court will appoint an attorney for the child. It is important to remember that the attorney for the child represents the child and not the parents.
How to Modify a Parenting Plan
Both parents must abide by their parenting plan or co-parenting agreement. Sometimes, a shared parenting plan needs to be modified because life circumstances of the non-custodial and/or the custodial parent change.
Common reasons why parents seek a parenting plan modification include new living arrangements, financial changes, substance abuse issues, domestic violence, remarriage, criminal conviction and when one parent fails to abide by visitation orders.
New York Courts will approve the shared parenting plan modification if the parent can prove that such modification is necessary and is in the child’s best interests.
If unable to modify a parenting plan, the Court will decide reasonable custody and visitation after a trial. You or your spouse must file a petition with the Family Court or start a post-divorce action in the Supreme Court for your case to be heard.
Can Gay Couples Have a Co-Parenting Agreement?
Yes. Same-sex marriage was legalized in 2015. LGBT couples can legally get married and utilize all matrimonial legal rights and responsibilities. Pursuing child custody is one of these rights during the divorce process.