Reviewed by Diana Szabo, Esq.
Key Takeaways
- New York does not start from a fifty-fifty split.
- Legal and physical custody are decided separately.
- Your child will likely have their own attorney.
- Withholding a child without a court order hurts your case.
Put bluntly, divorcing your spouse or leaving your significant other is an emotional nightmare. However, when children are involved, the process becomes much more difficult. Sometimes, it can be hard to determine what is in the child’s best interests. Before you begin the process, an experienced Matrimonial or Family Law attorney must help you understand what the Court looks for when making custody determinations.
Whether litigating custody before a Supreme Court Justice in your Divorce proceeding or before a Family Court Judge, the overriding focus in any custody case begins and ends with the child’s “best interests.” This term has a particular meaning in family law when making arrangements for children.
What Is Actually Being Decided
First and foremost, it’s important to understand the different types of custody arrangements available in New York. Generally, custody is considered in two separate questions, and a court will examine and consider each independently:
- Legal custody: Legal custody refers to the right of a parent to make decisions on behalf of the child. If legal custody is joint, the parents must reach an agreement on matters, including:
- Medical care
- What, if any, religion they practice
- Education
- General upbringing
- Physical custody: Physical custody refers to where the child lives. The parent with physical custody is responsible for daily care and supervision of the child. Joint physical custody means the child spends equal time in each home. Sole physical custody means the child will spend more time with one parent, while the other has visitation rights.
It’s important to understand that these do not need to match. As such, parents may share joint legal custody, while one parent is granted sole physical custody, which is a common custody arrangement.
New York Does Not Start From Equal Custody
It’s a misconception that courts will begin custody considerations by assuming each parent will begin with a fifty-fifty custody split, and adjust based on the information of the case. However, under Domestic Relations Law § 240, neither parent is granted a prima facie custody right, and the court will determine on the totality of the circumstances without a default arrangement.
On joint legal custody, the law leans the other way. In Braiman v. Braiman, the Court of Appeals held that joint custody is “insupportable when parents are severely antagonistic and embattled,” and is encouraged mainly as a voluntary arrangement for parents who can cooperate. Courts award it readily where both sides consent, and rarely after a contested hearing. If you are litigating custody against a hostile former partner, joint legal custody is the harder outcome to obtain, not the starting point.
The Child’s Best Interests in Custody Cases
In the context of child custody cases, focusing on the child’s “best interests” means that all custody and visitation discussions and decisions are made to foster and encourage the child’s happiness, security, mental health, and emotional development into young adulthood. Generally speaking, it’s often in the child’s best interests to maintain a close and loving relationship with both parents, but the practicalities of promoting and maintaining such relationships can be the main challenge in resolving a child custody dispute.
In any custody conflict, it’s crucial not to lose sight of the importance of making decisions in the best interests of your children. The choices you make now (or the decisions a court makes for you) will affect your child’s development and your relationship with them in several crucial ways for years to come.
What Factors Determine the Child’s Best Interests?
Although the best interests standard can be complex to define in some situations, some common factors are part of this analysis in most custody situations, such as the following:
- The pre-existing custodial arrangement (i.e., who is the primary caretaker of the child)
- The wishes of the child (if old enough to capably express a reasonable preference)
- The mental and physical health of the parents
- Any special needs a child may have and how each parent takes care of those needs
- Religious and cultural considerations
- The need for continuation of a stable home environment
- Other children whose custody is relevant to this child’s custody arrangement
- Support and opportunity for interaction with members of the extended family of either parent (such as grandparents)
- Interactions and interrelationships with other members of the household
- Adjustments to school and community
- The age of the child
- The overall quality of each parent’s home environment
- Whether there is a pattern of domestic violence in the home
- Parental use of excessive discipline or emotional abuse
- Evidence of parental drug, alcohol, or child abuse
- The relationship between the child and any siblings
- How close the parents live to one another and to the child’s school and activities
- Each parent’s work schedule and employment demands
- Each parent’s willingness to cooperate with the other and to support the child’s relationship with them.
Remember, courts don’t just look at one factor but take a more holistic approach. Their best interests determinations are generally made after considering several factors related to the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and happiness being the paramount concern.
The last factor deserves particular attention. Courts pay close attention to which parent is more likely to foster the child’s relationship with the other, and a parent who disparages the other or interferes with their time often damages their own position more than they realize.
Who Else Is Involved in a Custody Case?
During a contested custody matter, it’s important to understand that there may be more individuals involved than the two parents. There are two additional participants who may become involved in these cases, and parents are often unprepared for these matters.
The Attorney for the Child
During a contested custody matter, the court will often appoint an attorney to represent the child. This attorney is not neutral, nor will they report to either parent. Instead, they will privately meet with the child, act as an advocate for the child, and meaningfully participate through the case.
If the child is old enough to express their preference, the attorney can advocate on behalf of the child.
Forensic Evaluations
In the event the court deems it necessary, it may order a forensic evaluation of both parents and the child. This can entail interviews, observations of parent-child interactions, and psychological testing. The mental health professional conducting the evaluation will then enter their findings into a report submitted to the court. These examinations can be invasive and overwhelming, so it is important to understand the gravity of this situation before it is ordered.
What If I Believe My Child Is Unsafe?
If you have genuine concerns about your child’s safety when in the care of the other parent, it is imperative to understand that you should document these concerns rather than withholding the child without court approval. As such, you should keep a dated record of your observations and preserve any photos or messages that may help prove your concerns. Acting without court approval, regardless of how justified it feels, may become the issue the court focuses on, rather than the behavior of your spouse that raised concern in the first place.
Custody Orders Can Be Changed
It is also important to understand that, in New York, child custody orders are not irrevocable. As such, either parent may seek a modification of the custody arrangement, so long as they can prove that they have experienced a substantial change in circumstances occurring after the order was entered, and that the changes they are seeking serve the best interests of the child. The bar is deliberately high, because stability itself is treated as valuable to a child.
Find the Right Attorney for Your Child Custody Case
Even though you understand what’s in your child’s best interests, ultimately, the court will have the final say. The best way to express your concerns about your child’s well-being and work within the constraints of the court system is to work with an attorney who is familiar with child custody cases. The attorneys at Barrows Levy PLLC can help you. Contact us today for a free, confidential consultation.
