When married or unmarried parents decide to end their relationship, it can be challenging for them to work out a parenting schedule that best meets their child’s needs and allows for both parents to stay involved in their child’s life going forward. Ideally, with the help of a family law attorney, parents can negotiate the terms of a custody agreement without needing to go to court. Determining child custody and parenting time can be one of the most difficult parts of the divorce or separation process, so it is important to understand what these agreements cover.

The details of each case will vary, but in general an effective parenting agreement will specify both physical and legal custody arrangements. Physical custody refers to where the child will live during specific times of the year, whereas legal custody refers to how parents will be making major decisions related to the child’s life.

When determining physical custody, parents in New York will need to establish a schedule for weekdays and weekends during the school year, as well as for the summer, religious and legal holidays, birthdays, vacations and school breaks. These schedules can vary greatly depending upon the circumstances of each case, the child’s needs, the proximity of the parties’ homes when they separate, and many other factors.  In some cases, one parent will have primary physical custody of the child, meaning the child lives more than half of the time with that parent.  In these cases, the other parent will have visitation rights pursuant to the parenting schedule included in their agreement. In other cases, both parents will share physical custody equally, and neither parent will be considered the primary custodian.  “It has become increasingly common in recent years for parents to have equal physical custody, or very close to equal physical custody.  Courts are trending away from what was once considered a ‘typical’ access schedule, with one parent seeing the kids on alternate weekends and once a week for dinner,” says attorney Maureen A. Dunn.  

As for legal custody, the parents will need to establish who will make day-to-day decisions, as well as major decisions, including decisions related to the child’s religious upbringing, non-emergency healthcare, schooling, and extracurricular activities.  Parents can also share joint legal custody so that they are both fully involved in the decision-making process.  A well-drafted custody agreement will include a requirement that parents discuss major decisions that need to be made for their child, as well as a framework for parents to work through disagreements surrounding such issues. 

Once the parties finalize their custody agreement, it can be submitted to a judge to become a court order, and/or included in the terms of a final divorce judgment.  Both parents will be legally required to adhere to the terms of the agreement.  Afterward, if either parent wants to modify the agreement based on a change in circumstances since the time it was signed, the parent can petition the court for a modification.  If one parent violates the order, the other parent can seek court intervention and enforcement.  Ultimately, any decision made by the court will be based upon the child’s best interests.  

According to Dunn, “The best thing parents can do during a divorce or separation is to provide reassurance and stability for their children.  By reaching an agreement outside of court that meets their children’s needs, parents are alleviating a significant amount of stress for themselves and their children.”