Unlike other states, there are several rules that explicitly govern child custody decisions in New York. These rules are unique to the State of New York and may have further implications if one of the spouses or the child resides outside of the state.
Examples of the unique aspects of New York child custody laws include:
- 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 child lives outside the state of New York, custody cannot be determined except in certain instances according to an agreement or stipulation between the parties;
- Both parents have to support children under 21 years of age to the extent that each is able to do so under the Child Support Standards Act;
- Custody cannot be awarded to an individual other than the child’s mother or father, except under very limited circumstances, which need additional hearings; and
- In the instance where 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 interfere with the visitation rights of the non-custodial parent.
It is important to note that these rules are specific to New York State and may not apply to laws in other states. In addition, there are federal child custody laws that may overlap with the state guidelines.
If an individual is filing for a divorce or separation in the State of New York, it helps to keep these requirements in mind. An individual can also consult with a New York attorney for information on current child custody rules and laws.
How Does a New York Court Determine the Best Interests of a Child for Custody?
One of the most critical family law determinations that a court has to make is child custody. Child custody laws, including child custody laws in New York, can be complex and change as the laws evolve.
Determining child custody rights over a child must be handled carefully, as these decisions may profoundly impact the child for many years to come. When making child custody decisions, child custody laws place the child’s interests and background before a parent’s personal preferences. This is referred to as the child’s best interest standard. This means that a court will only make a child custody determination if that decision helps the child.
A parent may be considering how to obtain custody of a child or how to become a custodial parent. If so, they are required to prioritize the best interests of the child because this is what the court does during a custody hearing. Child custody is an important determination and the more that the parents understand how courts make child custody decisions, the more efficient the process will be.
What Are the Factors to Consider for Child Custody?
When determining child custody in a family court setting, the court will consider a wide range of factors that may affect the well-being of the child. Of course, these factors will be balanced against the child’s best interest standard in order to ensure that the custody determinations do not negatively impact the child in any way.
Common factors that courts examine related to child custody in a divorce or legal separation include:
- The relationship and history of interactions between each parent and the child;
- Whether one of the parents has served as the primary caretaker of the child;
- The child’s background and adjustment to their:
- Residence;
- School;
- Neighborhood;
- The physical and mental health of the child, in addition to the parents;
- Whether the child has specific needs, such as:
- Health;
- Medical;
- Psychological;
- Emotional;
- The wishes of the parents;
- If both of the parents agree to a certain custody arrangement, the court will typically approve that arrangement;
- The child’s wishes;
- If the parents cannot agree on a custody arrangement, the courts will give substantial weight to the child’s preferences; and
- The overall preferences of the child, especially if they are above a particular age.
The court will factor this into the custody determination if a child has special needs, such as medical needs. One of the parents may be more familiar with the special needs of the child and, therefore, may be awarded more custody rights than the other parent.
What Are the Factors That Courts Cannot Use to Decide Child Custody?
There are some factors that a court cannot consider when determining child custody. This may be because of other laws, for example, discrimination laws, that may overlap with child custody laws and that the court must follow.
Some of the factors that courts cannot use in a custody determination include:
- Race: A court, in general, cannot form a custody determination based on whether one of the parents is of a certain race or if they are dating an individual of a certain race;
- Racial background is generally not used in custody decisions unless it can be shown that consideration of race would help the child;
- Religion: A court is generally not permitted to base a child custody arrangement on religious issues or preferences;
- There may be an exception in situations where the child is being abused or placed in danger by spiritual practices;
- Gender: Traditionally, family courts automatically awarded child custody to the mother, as it was assumed that the mother was the primary caretaker for the children. This has changed in recent times, and courts now concentrate on a more comprehensive set of factors to resolve child custody and custodial parent arrangements; or
- Disability: Simply because a parent has a legally recognized disability does not automatically preclude them from getting child custody. Instead, courts will examine whether the disability would prevent the parent from performing their parental duties if they were granted custody.
Can I Move if There Is a Child Custody Order?
When spouses go through a divorce or a legal separation, child custody may be determined. The spouses may either agree on a custody arrangement together, seek assistance from a mediator, or present their case in court to a judge who will determine custody.
A child custody order that is legally binding and enforceable will then be provided. If possible, courts factor in custody orders that allow both of the parents to maintain frequent and continuous contact with the child, as this typically benefits the child.
In some situations, one or both of the parents will have to relocate, whether for personal reasons or because of a new job opportunity. This may cause issues with a child custody order if the move interrupts the custody and visitation schedule.
The parents should consider whether moving is necessary and how it may affect their child. In addition, they should find out if there will be any legal consequences that result from the move.
Should I Hire a Lawyer to Assist Me With My New York Child Custody Case?
When you are the custodial parent or the non-custodial parent who is seeking custody of your child, a New York child custody lawyer can advise you of the applicable laws. They can also help you prepare your argument for why you should be granted custody. This is true, especially if you are not the biological parent of the child.
As discussed above, the child custody laws in New York are different from other states and may have unique interactions with federal regulations and laws. Because of the complexities of child custody laws in New York, it is important to have a lawyer who is familiar with these laws handle your case.
