The best interest of the child is the paramount concern in connection with any decision related to child custody issues in New York. A child custody determination is one of the most important decisions that courts have to make in the field of family law. While state laws regarding the dissolution of marriage and all related issues differ, all states apply the best interest of the child standard regarding child custody.
The child’s best interest standard is the standard used in making decisions related to child custody. This means that a court will only make a child custody decision that serves the best interest of the child.
It is important to note that there are two kinds of custody at issue in every custody case. One is physical custody, which is where the child lives, and the other is legal custody, which is who makes the child-rearing decisions, e.g., whether the child is raised in a religious community, where the child goes to school and the like. In a divorce or legal separation case, a court must make an arrangement for each type of custody.
There are then two basic kinds of custody arrangements. One is joint custody or shared custody. In a joint custody arrangement, the parents may share both legal and/or physical custody. Typically, a judge decides on a custody schedule that is best for both parents and the child. Joint custody is a common middle ground in New York and many other states as well.
The child or children would reside in the homes of both parents for physical custody, and the parents would confer and agree on major decisions in a joint legal custody arrangement.
In a sole custody arrangement, the child lives with one parent who has sole physical custody, and the other parent has visitation. Judges tend to try to avoid this type of child custody arrangement unless the child would be in danger or one of the parents is clearly unfit to parent. Sole legal custody would mean that one parent has the exclusive right to make the major decisions about rearing their child.
Are There Any Special Rules in New York for Child Custody?
Unlike most other states, New York has several rules explicitly dealing with child custody issues. These are unique to New York and may have important implications if either spouse or the child lives outside New York.
Some of the special child custody rules in New York include the following:
- In divorce actions, if there are children under the age of 18 who reside in the state of New York, a demand for custody is mandatory;
- If the children live outside the state of New York, custody is not allowed to be determined except in certain instances according to an agreement between the parents;
- Both parents must support children under 21 years of age to the extent that each parent is able to do so under the Child Support Standards Act;
- Custody cannot be awarded to people other than the child’s mother or father, except under very limited circumstances;
- In a case in which a change of residence is involved, a New York court will give preference to the custodial parent’s decision to relocate, as long as their intent is not to frustrate the visitation rights of the parent who does not have custody.
These rules are specific to New York and may not apply to the laws of different states. Also, several federal child custody laws sometimes overlap with state guidelines. If a person plans to seek a divorce or legal separation in New York, it helps to be mindful of these special rules.
What Factors Do Courts Consider in Awarding Child Custody?
When a court is determining child custody in family court, it will consider a wide range of factors that may affect the child’s well-being. The factors will be balanced under the child’s best interest standard to ensure that the custody decision does not harm or negatively affect the child in any way.
Common custody factors that a court considers in deciding on a custody arrangement in a divorce or legal separation may include the following:
- The amount of time the child spent living with either parent;
- Where the child primarily resides at the time of the proceeding;
- Whether the child has special needs that one parent manages more effectively than the other;
- Whether there are any domestic violence issues in the family;
- Whether there are siblings involved. Courts typically keep siblings together in one household;
- Whether one parent handles the intellectual and emotional development of the child more effectively than the other;
- Whether parental isolation is a concern when it comes to child custody, a judge will consider if one parent can foster a healthy relationship with the other parent and if one parent will try to poison the child’s relationship with the other parent. It is in the child’s best interest to have a healthy relationship with each parent;
- Judges give older children the room to decide where they wish to live. A judge considers a child’s parental preference but is not bound to honor it;
- Does one parent have better parenting skills;
- Does either parent have drug or alcohol issues;
- Which parent is best when providing food, shelter, medical care, and education for the child;
- What is the home environment of each of the parents;
- To which parent is the child more closely attached, if one or the other;
- Whether there is already a custody order or informal agreement already in place;
- What parents’ work schedules and childcare options are;
- Which parent better supports a child’s spiritual needs and beliefs;
- What is the status of domestic partners in each parent’s home; and
- The mental, physical, and emotional health of each of the parents.
What Are Factors That a New York Court May Not Consider When Assigning Custody?
When determining child custody and visitation, there are certain factors that a court may not consider. This may be because of other related laws, such as discrimination laws, which interact with child custody laws and must be followed.
Factors that a court is not permitted to use when making a custody determination include:
A court cannot make a custody determination based on whether one parent is of a certain race or if they are dating an individual of a certain race. Racial background is not usually factored into custody decisions unless it can be demonstrated that considering race may benefit the child.
A court is not typically allowed to base a child custody arrangement on religious issues or preferences. However, there may be exceptions in cases where a child is being harmed or placed in danger because of certain religious practices.
Family courts traditionally awarded child custody to the mother because it was assumed that the mother was the primary caretaker. However, this has changed in recent years, and courts will now focus on a broader set of factors to determine child custody and custodial parent arrangements.
Because a parent has a legally recognized disability, of course, it does not automatically prevent them from obtaining child custody. Instead, a court will examine whether the disability would prevent the child from performing their parental duties if they are granted custody.
Are Courts More Likely to Award Child Custody to the Mother?
As previously noted, in the past, courts were more likely to grant custody or the majority of the custody right to the mother because it was presumed that the mother was better suited to care for the children.
This concept was based on societal notions and stereotypes that existed in previous decades. These notions, however, have been rejected by courts in most jurisdictions today.
Instead, a parent’s custody rights will be examined on a case-by-case basis, meaning that the court will examine each individual custody case in order to determine the ideal custody arrangement. Again, these determinations will be made using the child’s best interest standard instead of notions regarding which gender is better suited to raise a child.
How Can a Father Win Full Custody?
There are a variety of questions that may arise related to the custody rights of a father. A father may have such questions as:
- Whether a father may take their child or children away from their mother;
- What are the chances of a father getting full custody of their child;
- How a father may obtain full custody of their child;
- Whether a child can take his child.
Of course, a father should not take their child or children away from their mother and should not otherwise take their child or children forcibly in any situation. Doing so would certainly do significant damage to their chances of obtaining custody, sole, joint, or otherwise.
A father might obtain sole custody of their child or children if they make a persuasive case as to how that would serve the best interests of their child or children.
A custody battle on behalf of a father may be challenging. Most courts have discarded older notions that a mother is the better-suited caregiver. However, in order to get sole custody, a father would have to show that when all the factors noted above are considered, giving sole custody to the father would serve the best interests of the child.
What Happens When the Court Has Made a Decision?
Once the court has made a determination, a custody order is signed by the judge and filed with the court clerk. A custody order may be part of a final decree of divorce. The custody order binds both of the parents.
If either of the parents does not obey the terms of the custody order, either parent may bring the issue in front of the court either for enforcement or modification. A local New York attorney can assist if there are any questions about the process.
Should I Contact a New York Lawyer Regarding My Custody Issues?
If you are involved in a custody issue, you want to consult a New York child custody lawyer for help. LegalMatch.com can connect you to a lawyer who can advise you regarding New York laws, assist you in obtaining the custody arrangement that you prefer, and represent you when you have to appear in court.
