I've recently seen a trend with a few clients I've consulted with, where during a time when an amicable separation is being discussed one of the parents gives up custody, without necessarily knowing it. The scenario goes something like this: husband and wife decide to split, and one of them, say the husband, is going to move out, but since finances will be tight he is going to at least temporarily stay with a friend or rent a very small place. Since the new place might not be appropriate for primary physical custody, he says - you can of course have custody as long as I can still see the kids every other day and every other weekend and some overnights. Trying to save some money the two either buy a separation agreement form online or go to a document preparation company, and when filling in the blanks put down that wife has "sole custody". And by typing in two simple words and signing on the dotted line one of the parents effectively loses almost all parental rights regarding the child or children.
The concept of "sole custody" is much, much different than "physical custody". Sole or legal custody means that only one parent has the authority to make all of the major decisions in a child's life, such as where they will be schooled, what religion they will be brought up with, and major medical decisions. Sometimes sole custody is appropriate, for example in cases where two parents cannot get along or if one has shown poor judgment in acting as a parent, to name a few instances. But generally although the children may only live with one parent primarily, a joint legal custody scenario is preferred. It is after all, in the best interests of the child for them to have a father and a mother in their lives.
Once you voluntarily agree to relinquish these rights in New York, it is difficult to get them back. So, when your spouse asks you to sign a big stack of papers for starting your divorce or separation, read it very carefully and have a lawyer tell you what it means before you agree to something you'll regret.
