Whether married or not, separation can be a stressful and emotional time for both parents and their children. We recognize that protecting the parent-child relationship will often be the most pressing concern for divorcing or separating parents.
Our lawyers also understand the importance of mitigating the stress of the process on your children, which means working toward amicable custody orders that mitigate conflict and confusion.
Misunderstandings that arise from unclear custody orders often result in future modification and enforcement hearings.
Even when we cannot resolve all of the custody issues through negotiation, our approach allows us to narrow the litigated issues to reduce the cost, anxiety, and conflicts associated with your matter.
Separating parents must resolve issues related to legal custody, physical or residential custody, and access.
Legal Custody in New York
Legal custody refers to the right to make what is often termed “major decisions” about your child for matters such as medical care, education, and religion.
The term “joint legal custody” refers to decision making - the parties can have equal authority to make decisions about these types of issues.
While the parents can agree to joint legal custody and joint decision making, a New York court may be less likely to impose this in a litigated matter upon parents who cannot work together or communicate.
However, parents and courts recognize that each parent has the right to participate in the process. Even where one parent has decision making authority, that parent will usually be required to consult with the other parent in a meaningful manner before making the decision.
“Zones” or “spheres” of influence is a way of dividing the decision making authority. In cases where the parties are not completely at odds with each other but often disagree, they can stipulate, or courts can order, that each party have an area of decision making. This allows each parent to remain fully involved with the child(ren) and each can use their knowledge and experience to benefit the child. For example, one parent may have final decision making as to medical issues, and the other as to educational issues.
Our lawyers understand the importance of limiting the stress of the process on your children, which means working toward amicable custody orders that reduce conflict and confusion.
Physical or Residential
Custody and Access
“Physical” or “residential” custody refers to where a child generally resides, i.e. which parent has primary responsibility for the physical supervision and care of the child. “Access” refers to the schedule of parenting time. Generally, one parent will have physical or residential custody, or the parents can have equal physical or residential custody. Such a 50-50 arrangement would constitute “joint physical custody”. The judge also might award more than fifty percent custody to a parent, who would be the primary, residential or custodial parent.
As with legal custody, the parties can agree, or a Court can order a resolution of this. The judge could award physical custody jointly to be shared equally, such as where the parents split the week or alternate weeks.
Factors in Custody Cases
Although our lawyers recognize the advantages of a mutually amicable custody agreement, some cases require litigation because of the other parent’s lack of cooperation or the existence of complicated issues, such as allegations of abuse, domestic violence, or substance abuse. When the parties cannot reach an agreement, the judge will craft custody orders based on the “best interest of the child” and will consider many factors including:
Primary Caretaker: The judge often will favor the parent who was the primary caregiver prior to the separation of the parties.
Maintaining the Status Quo: Because children face significant transitions during a divorce, the judge will try to promote stability. If a parent voluntarily moves out of the family home, a parent remaining with the child(ren) may have an advantage.
Substance Abuse: If either parent has an issue with alcohol or drug misuse, this factor will favor granting custody to the other parent.
Domestic Violence: If a parent is shown to have engaged in acts of domestic violence against the other parent, the offending parent will be less likely to be granted custody.
Keeping Siblings Together: The court will try to keep siblings in the same household when possible.
Court’s Observation of the Parents: If one party shows a greater willingness to promote a positive relationship between the other parent and their children, the judge will consider this behavior.
Conditions in the Home: The judge will consider issues that affect the child’s health and safety within each home.
Parental Finances: While the court will consider financial obstacles like the inability of a parent to afford a place to live, the courts do not award custody based on the relative affluence of one parent compared to the other.
Physical/Mental Health of the Parents: If a parent has an untreated mental illness or suffers from a severe physical disability or illness, his or her health might be a factor favoring the other party.
Past Abuse or Neglect: If a parent has a history of abuse, neglect, abandonment, or interference with visitation, this history will weigh against the perpetrating parent.
Educational Opportunity: The court will consider the ability of each parent to offer superior educational opportunities.
Child Care Arrangements: If both parents work, the court might favor the party with superior child care arrangements.
Preference of the Child: The court will consider a child’s preferences based on their age, but the weight given to any preference will depend on whether the child has a sound justification.
The judge must consider evidence involving the totality of these factors and any other relevant information when crafting custody orders. The subjective nature of these evaluations make it essential to gather and present a compelling case for your position based on these factors.
You may have heard the terms “law guardian” or “attorney for the child.” In most contested custody cases, the Court will appoint an attorney to represent the children. The child(ren) will have a voice in the process.
You may have also heard the term “forensic expert.” In many contested custody cases, the Court will appoint a neutral mental health expert to evaluate various issues related to custody and to render a report to the Court to assist the court in reaching a final determination.
How Our Family Law Attorneys Can Help
While pursuing the best outcome for our clients and their children, we try to guide our client’s past potential roadblocks, like intense negative emotions, that work to a client’s detriment such as disparaging comments, alienating behavior, or a lack of cooperation.
We work with each client to help them understand the factors a court will consider when evaluating custody issues.
Our attorneys have successfully negotiated many effective custody agreements. We are also prepared to litigate challenging cases when necessary.
