In today’s blog post, I discuss some of the basic things that attorneys and Court’s look at when determining how to award custody of a child. From a practical perspective, I always urge clients to think about a schedule and understand that in the end, this is ultimately what we will be discussing. However, Courts are asked to make decisions when parents cannot agree and the following is a few of the more important considerations that attorneys and judges use in child custody cases.
There is no presumption as to whom will be awarded custody in New York and the overall consideration in a custody case is the best interest of a child. I know, this is a very broad legal concept and there are many things that a Court considers when determining what is in the best interests of a child. These factors have been developed in case law over the course of many years. The criteria that Court’s have developed in New York are not mandatory and the criteria are flexible so keep in mind that judges have a great deal of discretion in these types of cases.
One of the most important factors in a child custody case, is determining who is the primary caretaker. What does this mean ? Well, attorneys and judges look at who does most of the work of caring for child such as physically caring for a child, taking a child to the doctor, preparing meals for a child, spending time and supervising a child, assisting a child with school and extracurricular activities. These areas of a child’s life are what attorneys representing parents in a custody case will ask their client’s about. You, the reader, need to be regularly and systematically involved in your child’s care if you are going to prevail in a custody case. Mothers often are in the position of a primary caretaker, but there are plenty of cases where fathers have been awarded custody of children because they have been the primary caretakers too. So do not think, just because you are a mother or father, that the case is going to turn out a certain way. The Courts really do look at who is doing the work of parenting.
Parental fitness is another factor that Courts and attorneys will look at as well. What does this mean ? We are not talking about how often you go to the gym and work on your abs folks. We are talking about a parent’s (1) physical and mental health, (2) the use of drugs and alcohol, (3) lifestyle, (4) neglect, abuse or abandonment of a child, and (5) a parents relative economic status. Please understand that these issues discussed in this blog post are only factors and none of them are more important than another one. Courts really do look at the totality of the circumstances. In the context of parental fitness, the Courts will also consider the quality of interaction between each parent and a child. The ability to provide for a child’s emotional and intellectual development, the quality of the child’s home environment and the quality of parental guidance are all issues that will be considered by attorneys and Courts. What should this say to parents involved in custody disputes ? In short, do right by your children all the time.
Some people ask if their sexual orientation has an impact on a custody case. You should not be concerned. The only time sexual orientation becomes an issue is if there some activity by a parent of a sexual nature that has an impact on their parenting and it has an adverse effect on the child. With the legalization of gay marriage in New York in recent history, a parent really should not be overly concerned that entering into a same sex marriage will create great difficulty in a custody case.
In addition, domestic violence perpetrated by one parent against the other is a very important factor in custody cases in New York. There is a statutory requirement in New York for the Courts to consider domestic violence, particularly when it occurs in the presence of a child. Domestic violence has been shown to have a seriously adverse effect on a child’s growth and development so it is mandatory for Courts to consider this issue. A history of violent behavior by a father against a mother, for example, will raise serious doubts about the father’s ability to provide a child with appropriate parental guidance and be the custodial parent.
Another important factor to consider is a parent’s ability and willingness to foster a relationship with the non-custodial parent. Interference with visitation rights, which certainly involves this issue, can demonstrate to a Court that the parent is unwilling or incapable of supporting a child’s relationship with the non-custodial parent and may show that the interfering parent is unfit. Unfit is a very bad word in the context of a custody case and you do not want to be in a position of having this term thrown around in the context of your case, particularly if it is being considered about you. The Courts presume that its is in the best interest of a child to have the love affection and companionship of both parents. Interfering with another parent’s relationship with the child can be very problematic and it should not be done. I again urge clients to do right by their child on this issue. Obviously, if there is a significant issue that requires you as a parent to not comply with a visitation schedule, do what you need to do to protect your child. However, make sure you take the appropriate action such as contacting an attorney, the police, or filing a petition in Court promptly. Do not simply stop visits and engage in self-help.
One other factor that clients frequently ask about is how important is a child’s preference. Well, like many of the other factors, a child’s preference is just one factor of many. The Courts will generally look at the age of a child, the intellectual capacity of a child and the ability of the child to make reasoned decisions. Generally speaking, the older the child, the more weight his or her opinion will have in the decision process. With this in mind, I often tell clients that there is a reason that children are not allowed to vote, drive a car until age 16, or do many other things that have a legally binding affect. Children do not often make good decisions. There are many adults who don’t make good decisions either, but children have the excuse of being young and inexperienced. So do not let a child’s choice to live with one parent or the other keep you from at least speaking to an attorney about your options in these circumstances.
There are many other aspects of child custody litigation that we can discuss with you if you find yourself in need of an attorney for this type of case. Some that come to mind are visitation rights, supervised visitation issues, grandparent visitation rights, and relocation issues. I and the other attorneys in our firm are happy to discuss these matters with you if you find yourself in need of an attorney. Please feel free to give us a call for a free consultation and a free case evaluation at (845) 203-2287 . We have over 150 years of collective experience that we look forward to putting to work for you. Klein & Sanchez, we’ll fight for you!