The Evolution of Custody

The concept of custody is unsettled in New York family law. Those who maintain custody of a child have significant powers controlling how they raise that child. In many cases, these rights come at the expense of the non-custodial parent.

In Fuentes v. Board of Education of the City of New York, New York Law Journal, Sept. 2, 2008, pp 23-24, the U.S. Court of Appeals for the Second Circuit certified a question as to whether a noncustodial parent has the right to participate in educational decisions relating to a child where the divorce decree and custody order do no more than grant sole custody to the other parent.

In an intact family, there is no presumption that either parent has custody but rather there is a de facto joint custody arrangement, with either parent having the right to make decisions. Upon divorce, the custody setup must be replaced. Generally, it is in the children's best interests to have both parents involved in their lives, except in the most extreme cases.

Custody generally has two aspects: residential custody (where a child spends time) and legal custody (which parent has the responsibility for decision making).  To avoid excluding one parent unjustifiably, courts in New York have been breaking down legal custody into "zones of responsibility" (or "spheres of influence"). While having custody may not give a parent the right to make every important decision, it does give certain legal entitlements that are significant. It has been long known that "(c)ustody carries the implications of personal power. Visitation implies the acquiescence to that power."

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