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One of the most acrimonious areas of a divorce is child custody. Determining which parent will have custody of the children in a marriage can lead to some lingering bitterness between the parents. This is why the courts have set out guidelines to be considered in determining child custody. This includes the preference of the child of the marriage, but this is not dispositive in and of itself. Instead, the court will look at all of the factors in totality in order to determine the best interests of the child. In the following article, we will explore this very common question so that you can understand what is likely to happen in your child custody case.
The Basis for Custody
In the past, the most important factor that New York Family Court judges looked at in determining child custody decisions was the gender of the parents. There was a presumption that the best interests of the child were served by awarding custody to their mother. However, over time, this gender-based decision was proven to be not only discriminatory but also based on a false presumption that women were innately better at parenting than men.
Today, child custody is divided into two areas, legal custody and physical custody. Legal custody is the ability to make the most important decisions about the child’s welfare, including medical care, religious upbringing, and educational choices. In general, courts prefer to have the parents share legal custody wherever it is feasible. Physical custody refers to the primary place of residence for the minor child. Here, while joint custody is possible, it is not always practical. Divorced parents don’t often live in the same community, let alone in the same state. It is vital that children have a stable home life, and this includes being in the same school district if possible. Therefore, most custody battles deal with which parent will get the physical custody of the child in a divorce.
The Factors that a Court Considers in Making Custody Decisions
As any parent knows, there are times when your child seems to be closer to you than to his or her other parent. Then there are times when the child gets along better with the other parent. Moreover, one parent will often take on the role of disciplinarian when it comes to the children. The courts in New York understand this. They also want to avoid a situation where one or the other parent in a divorce will try to buy the affection of the child in order to win physical custody. This is why the child’s personal preference is just one of a number of factors used to determine custody. It is also why the court will give less weight to a younger child who may be more naïve than one who is older in age.
With this in mind, New York has developed a number of factors that Family Court judges will look at in order to decide child custody cases. No factor is completely dispositive in its own right, like how the presumption used to be to award custody to the mother. Instead, these factors are used by the court and taken as a whole to determine the best interests of the child.
One major factor is whether there are any instances of domestic violence. If one or both of the parents have a history of abusing the child, this could make it difficult to get physical custody. Furthermore, the mental and physical health of a parent will also be taken into consideration. Does either parent have any current substance abuse issues? If any of these health issues make it difficult for the parent to attend to the needs of the child, this could also hurt the chances of that parent obtaining custody.
The court will also look at some specific information regarding the home life of the child. Where does the child currently reside? Has he or she spent more time with the mother or the father? Which parent lives in the current school district of the child? Each of these could move the decision in one direction or the other. The court also looks at each parent’s parenting skills, ability to provide for the needs of the child, their personal relationship with the child, and their work schedules. The judge may even direct child welfare to visit each home to see if it is a safe and healthy environment for the child.
The judge’s goal is to determine which parent will be better able to provide for the best interests of the child, based on a totality of the particular circumstances in the case. This may include the preference of the children, but it is not guaranteed.
If You Are Involved in a Custody Battle, You Better Call Saul!
Custody disputes can become very bitter, especially if you and your ex have gone through or are still going through a difficult divorce. Our child custody attorney at The Saul Law Firm, LLP, will help you fight for your children, whether you are involved in a battle for legal custody, physical custody, or both.