“Joint Custody” vs “Joint Physical Custody” in New York

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kyxacoceka

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Hello all my wife is divorcing me in New York.

Our relationship is very amicable and we have come to a very pleasing verbal agreement between the two of us on how to proceed with the divorce. She has gotten a lawyer to help her with the paper work and filing; I don't plan to contest the divorce and have confidence that my wife doest wish to harm me in the divorce so I have not gotten my own lawyer hoping to save money.

My main and only real concern is insuring that the custody agreement is correct and benefits me and wife equally.

I have read a lot about the term "Joint Physical Custody" and how it is different than "Joint Custody"; in that "Joint Custody" is only about legal custody and "Joint Physical Custody" is more broad and encompassing.

Can anyone explain to me how these terms and ideas apply to New York law?

My wife and I are interested in both my wife and I having the full and utmost amount of custody over our child; a full partnership in the raising of our child; and an arrangement where the child will live with each of us as close to as equal amount of time that is logistically possible.


In the preliminary paper work that my wife got from her lawyer; it stipulated that we would have joint custody over the child with my wife being the custodial parent. It than included passages regarding my visitation rights; and how I must agree/insure to haveadult supervision over the child during my visitation periods; and how I would need to contact my wife a certain amount of time before I exercised my visitations, ect ect.

This custody stipulation does not come off as being correct to me. It seems as though I am just being seen as a visitor of my child (even a dirt bag in some sections) and not a 50/50 partner. My wife agrees that she does not like how the custody agreement is written.

We are going to go talk to her lawyer about this in the next few days and I wanted to get some more information on the topic, so that I know what questions to ask, and what we need to ask for.

Any help would be greatly appreciated

Best Regards
Dante
 
Joint custody does not equate to a 50-50 timeshare.

Is that what you want to have put in place?
 
OK, then you need to make that very clear and have it spelled out.

50/50 timeshare generally only works when both parents live close together and are willing to work together. You seem to have both of those elements present so that's good.

How old is the child?

How do you intend to do this? One week on/off? 4-3-3-4?
 
Thanks for the replies Proserpina;

My daughter is 7 months old;

We plan to do (and are doing right now) week on/week off until she becomes school age. Once she starts school we think it would be best for her to be in one place for the school week; so my wife will have her in our house mon-friAM and I will have her friPM-sun. We will switch this during summer vacation and all extended school vacations (ie winter, spring, xmass brake and ect). The rough math gives my wife the advantage by something like 30 days a year, but that is acceptable to me. At the moment we live about 30mins apart, but by the time schooling starts I plan to move much closer.

The number of days is not really what concerns me; I am confident I will be able to see my daughter any time I want and having dinners and outings together are going to be a thing we plan to do; we want our daughter to know she has two loving parents that care about each other and about her.

I am really just concerned about the divorce paper work. It may be just a matter of principle; but in the eyes of the state, law, and anyone else who cares about such things; I don't want to be viewed as a visitor with "visitation rights" over my daughter.

While reading the initial paper work it was clear that their where a lot of stipulations addressed that required me, singularly, to perform certain actions in order to insure my visitation rights. And there was virtually no stipulations that required my wife to perform certain actions. I find this to be unacceptable; she is my daughter whether or not I get a life insurance policy (for example); and while any good parent would perform the actions asked of me (I already have life insurance for example) it seems wrong that it has to be demanded of me while not of my wife. It's as if it's taken for granted that my wife is my daughter's parent but I need to prove that I am her parent as well.

I don't want that; I want paper work, law, that says my wife and I are both equal parents through thick and thin.

That's where my question about "Joint Custody" vs "Joint Physical Custody" comes from. My understanding of "Joint Custody" is that one parent is the custodial parent (in this case my wife) while the other is a visiting parent with visitation rights. That with "Joint Custody" both parents have equal "legal" say in what happens to the child; but that the custodial parents has tremendously more freedom/rights because they are the guardian over the child. In contrast my understanding of "Joint Physical Custody" is that both parents are seen as custodial parents, with both enjoying the same freedom/rights.

What I have read about "Joint Physical Custody" leads me to believe that is what I want in our custody agreement. But what you can find on the web is often vague, and I don't know how that applies to NY law.

Thanks again for any advise you can give me.
 
My daughter is 7 months old;

We plan to do (and are doing right now) week on/week off until she becomes school age. Once she starts school we think it would be best for her to be in one place for the school week; so my wife will have her in our house mon-friAM and I will have her friPM-sun. We will switch this during summer vacation and all extended school vacations (ie winter, spring, xmass brake and ect). The rough math gives my wife the advantage by something like 30 days a year, but that is acceptable to me. At the moment we live about 30mins apart, but by the time schooling starts I plan to move much closer.

The number of days is not really what concerns me; I am confident I will be able to see my daughter any time I want and having dinners and outings together are going to be a thing we plan to do; we want our daughter to know she has two loving parents that care about each other and about her.

I am really just concerned about the divorce paper work. It may be just a matter of principle; but in the eyes of the state, law, and anyone else who cares about such things; I don't want to be viewed as a visitor with "visitation rights" over my daughter.

While reading the initial paper work it was clear that their where a lot of stipulations addressed that required me, singularly, to perform certain actions in order to insure my visitation rights. And there was virtually no stipulations that required my wife to perform certain actions. I find this to be unacceptable; she is my daughter whether or not I get a life insurance policy (for example); and while any good parent would perform the actions asked of me (I already have life insurance for example) it seems wrong that it has to be demanded of me while not of my wife. It's as if it's taken for granted that my wife is my daughter's parent but I need to prove that I am her parent as well.

I don't want that; I want paper work, law, that says my wife and I are both equal parents through thick and thin.

That's where my question about "Joint Custody" vs "Joint Physical Custody" comes from. My understanding of "Joint Custody" is that one parent is the custodial parent (in this case my wife) while the other is a visiting parent with visitation rights. That with "Joint Custody" both parents have equal "legal" say in what happens to the child; but that the custodial parents has tremendously more freedom/rights because they are the guardian over the child.


That's not correct. Joint custody - whether or not the word "physical" is present - simply refers to both parents having some kind of custody of the child. Joint custody doesn't mean that one parent has more rights or freedoms than the other parent.


In contrast my understanding of "Joint Physical Custody" is that both parents are seen as custodial parents, with both enjoying the same freedom/rights.


Nope - that would be joint LEGAL custody.


What I have read about "Joint Physical Custody" leads me to believe that is what I want in our custody agreement. But what you can find on the web is often vague, and I don't know how that applies to NY law.

Thanks again for any advise you can give me.



Logistically, it makes sense for one party to be designated the primary residential parent. Think of medical appointments, school etc., things like that. Again, it does not imply or indicate that the residential parent has any more rights than the other parent.

Having the words "joint physical custody" added or omitted to the agreement won't change this.

As far as the other stipulations go - well, that's something you need to discuss further with your wife; she needs to understand that visitation/parenting time will NOT be contingent upon you doing A, B or C...
 
Thanks for your reply; :) you are very helpful

You touch on something is the essence of what is bothering me; If we were married issues like "medical appointments, school etc" wouldn't be an issue. I don't want them to be an issue now ether, I don't want the school or the medical professional and ect to view me any different then they would my wife.

I don't want "visitation rights" because I am not "visiting" my daughter. I want my daughter to live with me half the year and live with my wife the other half the year. No one's a visitor, two people are parents.

Is there a way to effectively have this in a divorce?


Thank you again for your help; its greatly appreciated.
 
Thanks for your reply; :) you are very helpful

You touch on something is the essence of what is bothering me; If we were married issues like "medical appointments, school etc" wouldn't be an issue. I don't want them to be an issue now ether, I don't want the school or the medical professional and ect to view me any different then they would my wife.


It really doesn't matter; neither the school nor the medical professional can refuse you access to information etc., unless there is a court order specifically prohibiting you from accessing that material (reproductive healthcare notwithstanding - but you're a long way from that!). How your divorce decree is written - in terms of the wording used to explain how much time is spent with each parent - is not the important part.

Now does that mean an individual might not treat you a little differently? No - but you can't avoid that. It's an unfortunate part of estranged parenting. No divorce decree in the world will change that :)


I don't want "visitation rights" because I am not "visiting" my daughter. I want my daughter to live with me half the year and live with my wife the other half the year. No one's a visitor, two people are parents.

Is there a way to effectively have this in a divorce?


Thank you again for your help; its greatly appreciated.


I agree - but again I think you're getting hooked up with the words versus the reality of the parenting plan. If you wish, you can use the term "parenting time" versus "visitation", even though the terms mean the same thing on a practical level.

Even with a 50-50 timeshare, generally one parent will be considered the "residential parent". This is again more about logistics than anything else.

Out of interest, how is Mom's attorney wanting to word things?

On a side note - your daughter is very, very young and many courts would consider week on/week off to be a very bad idea until she's quite a bit older because that's a very disruptive schedule for a baby.
 
I agree - but again I think you're getting hooked up with the words versus the reality of the parenting plan. If you wish, you can use the term "parenting time" versus "visitation", even though the terms mean the same thing on a practical level.

Even with a 50-50 timeshare, generally one parent will be considered the "residential parent". This is again more about logistics than anything else.

I understand what you're saying; I wondered that myself, whether I was just getting hung up on the words while still getting what I want. It's just hard to look at the divorce papers and not feel like I'm losing something. I don't want to be legalized out of my daughter's life even just a little; family and my daughter are very important to me and I'm quite torn up about this.

Out of interest, how is Mom's attorney wanting to word things?

Thank you for showing an interest; I will reproduce the section of the document once I can.

On a side note - your daughter is very, very young and many courts would consider week on/week off to be a very bad idea until she's quite a bit older because that's a very disruptive schedule for a baby.

I can understand the concern; but I cannot see another approach that would be better. It would also be very bad for her to go through this time without the influence of both her parents; not to mention how it would be bad for her parents.

Both her living conditions are quite ideal with plenty of support and love. She does not seem to be showing any signs of being affected. Her mental development is on par with the baby books, and by nature she is a very content baby; she wasn't a fussy baby from birth and still isn't.

Would the court, if it was so inclined, demand a different schedule even if both parents objected too it? If so what is the expected arrangement? I guess the only logical alternative would be one of us having her full time with the other coming to visit. Who would that be? We are both primary care givers to our daughter; she is bottle feed, and neither of us from day one took on more responsibility than the other. Would they summarily rule that my wife have her full time because she is the woman in this situation?


Thank you again for all your help; it realy means a lot to me.
 
Hi, understand fully what you are going through. I myself am legally separated since May 2009. We have "joint legal and physical custody" with "equal placement." Neither is the "custodial" parent. In the past two years our rotation has been based on my work schedule. (I work 2 1/2 days per week, two 16s and an 8). Overnights are nearly equal, I have the kids on average for the last two years about 190 nights. Because of my shorter work week I "babysit" for my ex (You don't babysit your own kids) 2-3 days of the week for our 3 year old. On days off from school and summer vacation I have our 3 kids on my days off. I drive about 15 miles on my days off one way to take the kids to school on her days as she has to be at work at 7am. Often she drops them at my mom and dads in the morning just down the street at 630am and I'll take them at 745 to school. Our separation was no child support as we both make a decent wage. At the time of the separation, she was the monied spouse. That has changed. One month prior to our year of legal separation (our plan was to make that the divorce decree) she filed for divorce, wants the custody to remain exactly the same, but is requesting full child support. By the way, I do pay for all medical, unreimbursed, eye glasses, catholic shcool, sports etc. I take them to nearly all appointments, activities etc.

So, from March of 2010 till now we have been going to court, nearly monthly, for "pre-trial conferences." I have offered mediation, a decent offer, but each time more is asked. Last month I said no more, but court was delayed again, and set for January.

Now then, if you are the monied spouse, I'm told in a shared/equal placement, or close to it, you will pay some amount of support based on paragraph f of CSSA. No one has been able to tell me if the time is close to equal, but leans to one parent, will that parent be termed the "custodial parent" in terms of child support. If you have the kids a bit less than equal, the court will name her the "custodial parent." You'll have "extended visitation." (Provided you can work this out, otherwise, in contested, the court can say every other weekend, One evening in the week and 2 weeks in the summer. Scary, I know.)

As for her age, I hope you live close to each other. As a medical professional I see alot of single fathers and mothers of 7 month olds. Both can be equally good or bad at it. Courts will see that as well. Keep a good relationship with her family if you can, its always good to have extra help at that age. If you can show that you can/are/will foster a good relationship with mom etc, chances are the court should be favorable at allowing you time. However, if you can work it out, judges like that better. I would try to get her to mediate, and allow her to have her attorney review.

I think New York is quite hard for fathers/mothers who want equal time with their children. You seem like a good dad, as the legal terms can make you feel less that what you are, the father of your children.

I suggest you read some articles about parental alienation, mediation, collaberative law and even reviews of New York case law. A good site is New York Divorce Law. At least I found it helpful. If you can mediate a parental agreement (my wife won't, but doesn't want to change the wording in the separation) I think it will be better for you rather than lawyers whom practice litigation style divorce. You may be able to offer this to her and have her attorney review it.

Be Strong!
 
Frankly I suggest OP gets his OWN attorney.

Thank you; I am beginning to think you are correct. I just would hate to waist the money. As I said my wife and I are not fighting and are most agreeable to the others wishes. But I guess spending the money now will save me from a lot of worry later.


What I also really really want to avoid is the adversarial situation that tends to occur when two divorce lawyers get involved.
 
Thanks for relating your story;

I think I could easily get her to mediate; she got her lawyer in the heat of the moment. She had wanted to get a divorce for a while and one day to make herself finally go through with it she went out and hired a lawyer for $5000. That's when I gave up trying to save our marriage and I think that's why she did it. So now she's in the whole for $5000. I would hate to have either of us spend more for this; we aren't rich and a dollar spent on lawyers is a dollar not spent on our daughter. We don't fight anymore, we are still good friends (have dinner at least once a week); she isn't asking me for anything I'm not willing to give her in the first place. I'm hoping that if I get enough working knowledge of what to ask; I can use the lawyer she already paid for to do the paper work to both our liking and do all the court leg work.

She doesn't have any family in our area, so they can't really help with the baby. They already love me a lot and are disappointed in her for getting a divorce. My family is in the area and help with the baby a lot, my family is obviously unhappy with her; but we're not the type to let that something like this stop us from doing the decent thing; she knows my mom/dad/siblings are just a phone call away if she needs them.

I am the "monied" spouse (though I am by no means monied haha wish I was), and I do not have a problem with child support. Right now it will be in the form of mortgage payments.

(Provided you can work this out, otherwise, in contested, the court can say every other weekend, One evening in the week and 2 weeks in the summer. Scary, I know.)

If you can show that you can/are/will foster a good relationship with mom etc, chances are the court should be favorable at allowing you time. However, if you can work it out, judges like that better. I would try to get her to mediate, and allow her to have her attorney review.

Yea, I think it's pretty despicable how men are treated some times in family court. I'm sure a lot of people (men and women) do deserve to be treated harshly. But the average person should have to prove anything to a court, a court couldn't possibly know the best way to raise a child that is not theirs; "every other weekend, One evening in the week and 2 weeks in the summer" is crazy for a otherwise good parent, its tantamount to kidnapping.
 
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