The separation of a child’s parents is a very traumatic event in the child’s life. Ideally, the parents can come to an agreement on what’s best for the child in terms of custody and visitation, and then formalize the agreement in the courts. When this is not possible, NY State courts will do their best to determine what is best for the child (or children) through Family Court and the divorce proceedings – that is their essential goal with custody. In most cases, the result is joint custody, although the courts have to use their best judgement in a case by case basis.
Types of Custody
There are two main types of custody: Legal Custody and Physical (or Residential) Custody, both of which can be granted as joint custody to both parents, or as sole custody to one parent.
If a child’s parents are granted Joint Legal Custody, both parents have to be consulted in decisions regarding matters such as the child’s religion, medical affairs, schooling, and extracurricular activities. If Sole Legal Custody is granted to a parent, that parent may make these decisions for their child without being legally obligated to consult with the other parent.
Physical Custody refers to where the child will physically live. With Joint Custody, the child lives sometimes in the home of one parent, and sometimes in the home of the other parent. Joint Custody is not always awarded evenly, meaning that the child may spend more time with one parent. In these situations, the parent with more custodial time is considered to have Primary Physical Custody of the child and is enabled to make certain decisions independent of the other parent. There are also additional tax credits available to a primary physical custody for a child. When Sole Custody is awarded, the child lives exclusively with one parent, although the other parent usually is granted some visitation rights.
If an agreement cannot be reached when a divorce or separation is initiated, an order of Temporary Custody can be made if one or both parents file the custody petition in Family Court. The temporary order remains in effect until a final determination of custody is made when the case or is closed or the divorced is made final. The final custody decision nullifies the temporary order.
Ex Parte Orders
While not strictly an order of custody, an Ex Parte Order can be made in situations in which the courts determine the child’s immediate well-being is threatened by either one of the parents. The petition can be filed by a concerned parent at any time (including after custody has been awarded), when that parent feels it’s necessary to seek an Order of Protection for their child. Because of the nature of these situations, Ex Parte Orders are granted based on evidence and information from one parent only. However, the courts will set up a court appearance as soon as possible to allow the other parent the opportunity to be heard directly regarding the reasons the petition was filed. As a result of the court proceedings, the order will be continued, modified or vacated.
Preparation for a Custody Trial
There are many things you can do to help ensure a reasonable custody agreement is declared by the courts. If the custody arrangement for your child is to be determined by the courts, it’s wise to remember that courts are made up of judges, which are human and are trying to determine in their best judgement what will be best for the child. Some of the elements the courts used are objective and basic, while others are a more subjective evaluation of your ability to be a good parent.
The following is a list of some primary elements the courts may consider in a custody case.
Occupation: a good, stable job with a regular work schedule (a regular is important for the stability of the home environment for the child)
Financial Situation: stable finances that allow for the appropriate care of a child over time
Home: a good living situation that is clean and safe with a bedroom for the child
Relationships: a strong, nurturing and close relationship throughout the child’s lifetime is a primary consideration; courts also consider the willingness of a parent to help foster (or at least not interfere with) the relationship between the child and the other parent extremely important
Health: mental health, physical health, disabilities, and age as they relate to the ability to care for a child; a Forensic Evaluation can be made by a mental health professional to assess the mental fitness of each partner to care for the child.
Character & Legal History: Both past and current substance abuse problems; past legal problems, especially a history of spousal or child abuse (regardless of if they included individuals outside of the custody case); flagrant signs of promiscuity (to some judges, this may also indicate that a child may not always be safe while in a parent’s custody; however, note that marital fault is only indirectly related to a court’s custody decision)
Child’s Preference: an attorney appointed by the court (Legal Guardian) represents the child’s wishes; the weight this carries depends on the child’s age (the younger, the less weight)
It’s easy to see why a common misconception is that the parent with the bigger, cleaner home and the best job with the largest paycheck will get more custodial rights for a child. However, Home, Occupation and Financial Situation are just a few of the elements up for consideration, and are intended to ensure that the child will receive adequate care in these areas – not necessarily lavish care. The attention and love the child will receive carries much greater value, once the courts are assured a parent can provide for good health and home to a benchmark level – which of course, leads to the other and often opposing misconception that the child’s mother is usually favored in custody cases. In reality, each case is different, and the courts have to evaluate all the criteria to determine as best it can what will be best for the child.