Decision Making in Joint vs. Sole Custody

In the state of New York, when parents are no longer together and a determination of custody is made, many parents wonder who will get to make the major decisions for the children. No parent wants to relinquish the right to make decisions on behalf of his or her minor children, but in some circumstances it cannot be avoided.

There are essentially two types of child custody, legally - joint custody and sole custody. When one parent has sole custody of his or her children, that parent is the one who gets to make all major decisions on behalf of the child or children.

When the parents have joint legal custody of their child or children, however, the issue of decision-making becomes a bigger factor. In many, but not all, cases where parents have joint custody, one parent will have final decision-making authority. This is something that is often agreed upon between the parents and placed into their custody Order. This doesn't mean, however, that the parent with final decision-making authority has the right to unilaterally make major decisions concerning the children without notifying the other parent or discussing the options with the other parent. A typical joint custody Order will provide that the parents should discuss options when making decisions about their children, and if they do not agree as to what decision should be made, each parent should present his or her proposal to the other parent in writing. Then, only after careful consideration, the parent with final decision-making authority should render a decision, and that decision should be fully explained to the other parent.

If parents have joint custody of their children and neither parent is specified as the final decision-maker in the parents' custody Order, things could potentially get complicated. In this situation, when a major decision needs to be made on behalf of one of the children and the parents do not agree on said decision, the parents would need to go back to Court to have a determination made as to what should be done or who should make the decision. Not having a specified decision-maker in a custody Order only works well when the parents of the children can communicate civilly and can co-parent effectively and keep their children's best interests at the forefront of all decisions.

In addition, keep in mind that the decisions discussed above are major, non-emergent decisions that need to be made for the children. When a child is with one parent, any day-to-day decisions that need to be made, such as what to eat for breakfast or whether to go to the park or the movies, can be made by the parent the child is with, regardless of who has final decision-making authority. Major, non-emergent decisions that require the input of both parents include, but are not limited to, what religion the child will be raised in, what extra-curricular activities the child will participate in, whether or not the child will attend college, and the like.

If you are in need of an experienced attorney to represent you with respect to this or other issues concerning the custody of your children, call the office at (845) 867-2840 to schedule your free consultation.

New York's Residency Requirements for Divorce

If you want to file for and obtain a divorce in New York state, the law requires that the Plaintiff, Defendant or the marriage itself have a connection of some sort to the state. Therefore, there are certain residency requirements that you must meet before you can obtain a divorce here. You cannot necessarily get married in another state, show up in New York and then immediately obtain a divorce.

There are five different ways to meet New York's residency requirements for a divorce. The first is that the marriage occurred in New York and either spouse is residing in New York at the time the divorce is commenced, and that spouse has resided in New York for at least one year immediately prior to commencement of the divorce action. For example, if you and your spouse get married in New York but then move to Florida, you may have to move back to New York and stay for a year before filing for and obtaining a divorce in New York.

The next way to meet New York's residency requirement for divorce is for the spouses to reside together in New York as husband and wife and for either spouse to reside in New York at the time the divorce is filed, so long as that spouse has lived in New York for at least one year prior to filing for divorce. Unlike the first requirement, mentioned above, in this second scenario the husband and wife could be married in another state, so long as they lived together as husband and wife in New York at some point during their marriage.

The third possible way to meet New York's residency requirement is for the cause of action for divorce to have occurred in New York and for either spouse to have resided in New York for at least one year prior to the filing of the divorce action. For example, if the grounds for your divorce are abandonment, and that abandonment happened while the husband and wife were in New York, then a divorce can be obtained in New York so long as either spouse has also resided in New York for at least one year prior to the time the divorce action is filed.

The fourth residency requirement that can be used to obtain a divorce in New York is when the cause of action for divorce occurs in the state of New York and both the husband and wife reside in the state of New York at the time the divorce action is filed. In this scenario, you don't have to have gotten married in New York or lived together as husband in wife in New York, but the cause of action for divorce must have happened in New York and both the husband and wife have to be living in New York when the divorce action is filed.

The fifth and final way to meet New York's residency requirement for divorce is for either spouse to have lived in New York for a continuous period of at least two years prior to the filing of the divorce action. It does not matter where you got married in this scenario, whether you ever actually lived together with your spouse in New York, nor where the cause of action for the divorce occurred, so long as either the husband or the wife resides in New York for a continuous period of two years or more prior to filing for divorce here. 

Residency is a very important factor in a New York divorce because it gives the Supreme Court jurisdiction over the case. One of the residency requirements must be sworn to in your divorce documents and included in the final divorce paperwork that is prepared and submitted to the Judge at the end of your case for the Judge's signature. Therefore, you must make sure that you meet at least one of the above five statutory residency requirements before filing your divorce action in New York.

In addition to requirements for residency, there are many other rules and requirements that need to be met throughout the divorce process, which can be difficult without an experienced attorney representing you. If you have any questions about this area of law or would like to schedule a free consultation to discuss divorce representation, please call the office at (845) 867-2840.

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