Written by the Legal Aid Society of Northeastern New York
You must decide custody, visitation, and child support before a judge will finalize the divorce. This applies to all children born or adopted by both you and your spouse before or during the marriage.
What is child custody and child support?
Child custody means responsibility for important decisions (medical, education, religious, activities) and physical care for the child (who has the child during the week/weekend).
Child visitation is for the parent who does not have custody of the child to visit and spend time with the child.
Child support is money that a parent has to pay for their child’s general expenses, such as food, child care, health care, and other needs.
- Parents must provide child support for children who are younger than 21.
- Custody and visitation decisions are for children who are younger than 18.
There are two main ways to decide child support, custody and visitation:
1. During a divorce, you can work out a parenting plan and child support:
- with your spouse, on your own
- or go to mediation.
The parenting plan and child support agreement will be reviewed by a Judge. If the Judge approves, it becomes a court order (a legal document both parents have to follow.)
2. Before filing for a divorce, you can go to Family Court to file for custody, visitation, or child support. These are free to file in Family Court.
If there is no court order, both parents have equal rights to physical and legal custody of the child. If you have a court order, the only way to change it is going back to court.
Who gets child custody?
Custody has two parts: legal custody and physical custody.
- Legal custody means you make important decisions about a child’s life, like educational, medical, and religious choices.
- Physical custody, also known as residential custody, means you are responsible for housing, supervision and care for your child during specific times.
A judge will decide custody based on “the best interest of the child.” The judge considers what is safest and healthiest for the child, such as:
- Which parent has been the main caregiver
- You and your co-parent’s ability to parent and nurture the child
- You and your co-parent’s mental and physical health
- Whether there has been domestic violence in the family
- You and your co-parent’s work schedules and child care plans
- What the child wants, depending on the age of the child
After reviewing the factors, the Judge can assign:
- Joint legal custody for you and your co-parent to make major decisions about your child together. It doesn't matter which parent your child lives with; both of you must agree on the decisions together.
- Sole legal custody for only one parent to make major decisions for the child.
- Joint physical custody for the child to live with you and your co-parent for the same amount of time.
- Sole/Primary physical custody for one parent, so the child will live with this adult more than 50% of the time. The other parent can visit the child according to the Judge's rules.
The Judge can decide any combination of custody or the parents can discuss and agree. The custody order is until the child is 18 or one of you goes to court and changes it.
Learn more about how to get child custody.
Who gets visitation?
If one parent is granted sole/primary physical custody, the child will live with that parent more than 50% of the time. The parent with sole/primary physical custody is the “custodial party.”
The other parent is the “noncustodial party." A noncustodial parent can visitation rights, which are set times and days when they can visit their child. A judge will decide on visitation rights based on the best interest of the child.
Who gets child support?
- If you have sole/primary physical custody (the judge decided your child lives mostly with you), you can get child support from your co-parent.
- If custody is split equally between you and your co-parent, the parent with the higher income may have to pay child support.
The judge decides the amount of child support based on income, the number of children, and other factors.
Learn more about how to get child support.
Last Reviewed: November 9, 2023