PHYSICAL CUSTODY AND PARENTING TIME

In New York, "physical custody" refers to which parent the child spends more time with and the parental access schedule the family follows.  The appropriate parental access schedule is unique for each family.  In many cases, the parents can share equal access time with the child.  In other situations, one parent is in a better position to care for the children a majority of the time—with the other parent having more limited visitation with the child.  Either way, there is a strong presumption in New York that each parent is entitled to some visitation time with the children.

In exigent circumstances, however, it may be necessary to place restrictions on a parent’s access time with a child:

• Supervised Visitation: New York courts will impose supervised visitation when unsupervised visitation would be detrimental to the children or could place the children’s safety at risk.  Courts may impose supervised visitation when a parent poses a risk to either the children’s physical or mental well-being.  Courts often direct that a family member or friend supervise visits.  In more extreme circumstances, the court may appoint a professional supervisor, such as a social worker, who provides reports to the court of what occurred during supervised visits.

• Drug and Alcohol Testing and Monitoring: By contesting custody, parties place their physical condition into controversy in the case, which results in a waiver of privacy protections.  As a consequence, when there is a plausible evidence of drug or alcohol abuse, New York courts have discretion to direct testing.  Courts can also direct on-going drug and alcohol monitoring as a condition of visitation. In such cases, it may be appropriate to implement a SoberLink protocol—a testing device that monitors alcohol consumption throughout scheduled visits with children.

• Mental Health Treatment and Therapy: New York courts may direct that a parent or child participate in mental health treatment or therapy, as a component of a final custody order. However, New York law explicitly prohibits directing mental health treatment as a pre-requisite to visitation or access time.