Understanding Child Custody

Posted By Eiges & Orgel, PLLC || 19-Feb-2015

So you and your spouse are splitting up, but what about the kids? When divorcing, it’s imperative to understand the nuances of child custody and what they mean for you and your family.

Best Interest of the Child:

New York Domestic Relations Law §70(a) dictates that:

“in all cases there shall be no prima facie right to the custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness , and make award accordingly”

The courts understand this to mean as follows:

“In a custody proceeding arising out of a dispute between divorced parents, the first concern of the court is and must be the welfare and the interests of the children. Their interests are paramount. The rights of their parents must, in the case of conflict, yield to that superior demand. Lincoln v. Lincoln, 24 N.Y.2d 270, 299 N.Y.S.2d 842, 247 N.E.2d 659 (1969).

This statutory standard, as applied by the courts, is known as the best interest of the child standard. When the courts become involved in a determination of your family’s post-divorce dynamic, the court is going to make such a determination using the best interest of the child standard.

Custody Awards:

Joint Custody: An award of joint custody requires a great deal of cooperation between parents. Encompassed in a joint custody determination are the concepts of legal custody and physical custody.

  • Legal custody: Concerns decision-making with respect to a child’s welfare, education, religious upbringing, etc. It is often referred to as joint decision-making. A grant of legal custody gives a parent the authority to make major decisions regarding the child and their wellbeing. Joint legal custody requires the parents to confer and collaborate in the making of these upbringing choices.
  • Physical custody: Involves the child’s residence as well as the day-to-day physical care and supervision of a child. Physical custody may be shared by cooperating parents who can agree upon a schedule by which the child moves between the homes of the two parents. This division of time may be equal or disparate depending on the family situation. Physical custody is also referred to as residential custody.

When a court awards joint custody, joint decision-making is often conferred equally upon both parents. However, one parent may be granted final decision making ability. An award of joint legal custody does not necessitate joint physical custody .

Joint custody is only appropriate where the parents are capable of sharing responsibilities and decision making without significant conflict. The concept of joint custody envisages a positive and collaborative relationship among divorced or separated parents. In New York, before a grant of joint custody, courts will look to the stability and amicability of the parental relationship.

Joint custody requires parents to be in consistent contact and to discuss major and difficult decisions in a productive manner. As can be imagined, two individuals who have decided to break up often cannot simply set aside their issues to co-parent in a mature and civilized manner. As a result, New York courts are generally hesitant to award joint custody. In making this determination a presiding court may look to a myriad of factors such as the parents’ ability to cooperate, the age of the child, the desires of the child, the geographic distance between the parties, the individual home environments, the nurturing capability of each parent, and the existing relationships between each parent and child. Ultimately, the best interest of the child is controlling.

Sole Custody: An award of sole custody assigns to one parent both legal and physical custody . This parent is often called the custodial parent . The non-custodial parent is generally granted visitation rights . Furthermore, while one parent may have primary custody, this parent may be required to deliberate with the non-custodial parent about certain child care decisions.

Modification:

Once a final award of custody has been granted based on the best interest of the child, a modification may only be permissible upon a showing of a substantial change in circumstances. The deciding court must contemplate the totality of the circumstances to determine whether a modification of custody is necessitated by the best interest of the child.

Categories: Child Custody, Divorce
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