Courts nowadays presume that both parents should have equal access to their children, that neither parent has a superior right to custody over the other parent as each case is decided on its own merits. The exemplifies the progression the courts have made from the antiquated notion that the mother would be awarded custody, simply because she was the mother, and the father would be “allowed” visitation rights.
Types of Child Custody in New York
There are two (2) types of custody in New York:
- Legal Custody – which is the parents right to be involved in decision making for the child. Which is further broken down as follows:
- a) Sole Legal – vests that right in one parent – typically where the parents have a volatile relationship, and cannot co-parent, or where there is a history of domestic violence.
- b) Joint Legal – means both parents make all decisions regarding health, education, religion, activities and general welfare together and mutually agree upon same
- Physical Custody – is the physical access schedule between the parents, setting forth when the child is with which parent. It also includes the determination of who will be considered the primary residential parent for purposes of enrollment in school and/or payment of child support.
Deciding Who Receives Child Custody
The best interest of the child is the standard by which the Court determines which parent gets physical custody and decision making rights, when parents cannot agree amongst themselves.
In New York, the laws provide many factors for the Courts to consider when deciding what is in the best interest of the child.
The following are some of the factors the Court may consider in their determination:
- The child’s age
- Wishes of the parents
- Who the child’s primary caregiver is
- Whether the child has any special needs that one parent is better equipped to handle.
- Whether domestic violence is an issue in the family
- Whether there are any siblings, as courts like to keep siblings together in most instances.
- Whether one parent is better equipped to handle the intellectual and emotional development of the child
- Whether parental alienation – where one parent is turning the child against the other parent – is involved
- If an older child has a preference about where to live, which will not be determinative of custody but is something a court may take into consideration
- Whether either parent has issues with alcohol, drugs or mental health
- Which parent can better provide food, shelter, medical attention, and education for the child
- The home environment of each parent
- If there exists a strong bond between the child and the parent
- Whether there is a custody order already in place or an informal agreement as to custody and how long that agreement has been in place.
- Whether a parent will be able to promote the child’s religious beliefs and religious upbringing
- Whether false allegations were made by one parent against the other
- The mental and physical health and stability of each parent
- Most importantly, which parent is best equipped to foster and promote a relationship between the child and other parent
Seeking Child Custody in New York
When reviewing the factors above, the court, in its consideration of the child’s wishes, may consider those of a 14 year old, but not necessarily those of a 6 year old who are more impressionable and easily manipulated.
While each factor on the list tends to hold similar weight, if the child has been living with one parent for a long time and is doing well, a court typically will not disturb the situation, in the absence of extenuating circumstances.
The court must also consider the “totality of the circumstances” when reviewing all factors in their best interest determination. The court may also consider of factors, collaterals, or evidence produced at the trial, that it deems appropriate.
If you are seeking child custody and are not sure what the first steps should be. The attorney’s at McCabe, Coleman, Ventosa and Patterson, PLLC can assist you in determining the best path to take for your situation. Schedule your consultation today to begin discussing your case.