How NY Courts Determine Custody

We have been involved in several child custody investigations on Long Island, NY. over the past several weeks. As a result of being involved in these cases we were reminded how difficult and overwelming the court system is and how many of our clients are in need of an overview of Child Custody Rights in New York State. It is our hope that this blog give you a greater understanding of NYS Family Law as it pertains to Child Custody. Neither parent has a preferred right to custody of their children in New York State and either parent can apply for custody. Custody can be granted in Supreme Court during a divorce. It is important to have only one case open at a time. If you have a divorce case open in Supreme Court you cannot try to get custody in Family Court until the divorce in Supreme Court is concluded.

Jurisdiction

The court must first decide if it has jurisdiction to hear the case. Generally, this means that the child must have resided in New York State for the past six (6) months. If the child is less than six (6) month old you need to file for custody in the state where the child was born. Sometimes, it is better to wait to file until the child has lived in NYS for more than six (6) months.

“Best Interests of the Child”

The court must make its custody agreement decision in the “best interests of the child”. The court will look at who is the “primary caretaker ‘‘of the child is. The primary caretaker is the parent who spends the most time with the child, and is the parent the child turns to if they need something. A decision in “the best interests of the child” requires considering the wishes of the child’s parents, the wishes of the child, and the child’s relationship with each of the parents, siblings, and others who may subsequently impact the child. The mental and the physical health of the parents is definitely a deciding factor. In deciding “the best interests of the child” The court will look closely at:

• Who is the main care giver/nurturer
• The parenting skill of each parent, their strengths and weaknesses and their ability to provide for the child’s special needs, if any
• The mental and physical health of the parents
• Domestic Violence
• Work Schedules and the child care plans of each parent.
• The child’s relationship with his or her brothers , sisters, and members of the rest of the family.
• The wants of the child if old enough to express their needs.
• Each parents ability to cooperate with each other and encourage healthy relationships.
• The court will also look carefully into the lives of both parents and the homes that they will provide for the child.
• Marital fault will generally not play a large role in determining custody. Who is to blame more for a failed marriage is not the decisive factor in custody, but it will be considered. The court has ruled in the past that the act of adultery is minor, but when a parent’s paramour is brought into the marital home and the children overheard the lovers, the court held that the wife placed her own needs ahead of the children. It is how the events affect the child that will play a factor, not the events themselves.
• A parent’s behavior in court will play a significant factor in determining custody. Being argumentative or expressing hostility towards the other parent will be noticed by the judge. Likewise, being reasonable, cooperative and respectful towards the court will help. In court behavior alone will not determine custody, but it can certainly help tip the odds one way or the other, and should not be ignored.
• Religion will play a role when a child has been raised as one religion and the parents are of different religions, but religion alone will not determine custody. The court will favor the parent who is better able to continue with the child’s religious upbringing. Needless to say, trying to change a child’s religion, or interfering with a child’s religious instructions will not be looked upon favorably by the court.
• The parent who has physical custody of the child when the custody application is filed tends to have an advantage because the court will take into the stability of the child’s life. The court will try to avoid as much disruption to the child’s life the child’s life.

Law Guardian

During the court process a Law Guardian will be assigned by the court to the case. This attorney is chosen by the court to be the child’s lawyer during the custody case, and as such will play a role independent than that of the parties. Depending on the age of the child, the law guardian may be an advocate for the child, or the law guardian may substitute his or her own position on behalf of the child, acting more in the role of a guardian ad litem. The law guardian’s position may change during the course of a custody case, and it is not uncommon for a law guardian to be undecided prior to trial, especially as new facts continue to develop. Courts will place a great deal of weight on the law guardian’s position, but the court is not bound to blindly follow the law guardian. Law guardians will generally not issue reports, nor will law guardians testify or be subject to cross examination. The law guardian’s job was to take a position which must be supported by the evidence on the record.

What is Child Custody?

Child Custody is a term that describes the legal relationship between a parent and a child. There are two types of custody, physical custody and legal custody. Physical custody is about where the child lives and legal custody decides which parent has the right to make important decisions concerning the child. The courts have the option of choosing one of several types of legal custody.

• Temporary Custody: The court grants one parent or individual custody on a temporary basis during a divorce or separation.
• Exclusive Custody: The court endows one parent with al custody rights to the exclusion of the other parent.
• Joint Custody: The court grants the parents equal rights in making decisions concerning the child. If granted joint custody both parents have to get along and be able to talk and agree on important decisions concerning the child’s medical care, education, and religion. Both parents will have access to their child’s medical and school records. Everyday decisions are handled by the parent who has physical custody of the child.
• Third Party Custody: The Family Court can grant custody to a third party if a third party has sought custody. A third party can be a grandparent or a close relative of the child. The court can also separate children and split custody if it deems that it is in the best interest of each particular child. Generally, the best interest of the child is to live with his or her siblings.

What is a Forensic Evaluator?

A Forensic Evaluator is a psychiatrist, psychologist, or social worker chosen by the court who supplies the court with information about the family in a custody/visitation case. The evaluator will interview family members and other mental health care providers who have worked with the family in the past. They can administer psychological tests to the parents. They may also visit the child’s school and or daycare and interview the child’s caretakers/babysitters. The evaluator will report their findings to the court and will be a witness in the case. Wondering about child support payments? Well, alllaw.com has a Child Support Calculator on its website. Here is the link : http://www.alllaw.com/calculators/childsupport/new_york/. I hope this blog will help you have a better understanding of the child custody process. We are available to help you through this process and help gather evidence that might be valuable to your case. We handle child custody cases throughout long Island, NY, New York, Nassau and Suffolk Counties.