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.
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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.
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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.