CHILD CUSTODY
In all of the law there is no more difficult or important area than child custody. While it sounds melodramatic, a little life can be lost if the inappropriate parent is selected to have custody of the parties child(ren). At one time, New York and mostly every other jurisdiction followed the “Tender Years Doctrine” meaning that small children had to be with their mother and fathers need not apply; fathers were always relegated to weekend visitors, quite an unnatural status if one really thinks about it. The old law was worded in such a way that gave mom priority over dad being awarded custody. As society evolved, the law has changed, as well, so that now custody law is “gender neutral”, that is to say, there is no presumption if either parent is the appropriate custodial parent. The court must now make a custody decision based on the best interests of the children taking into account all relevant factors existing at the time. The law is even neutral with a gay parent, who has the right to equal access to his or her child as a heterosexual person does. With one exception that will be discussed below, the child custody statute is written in broad terms, stating, in sum and substance that the parent who can better provide for the child’s best interests should be vested with custody. Some people still feel the statute is just lip service and moms get custody much more than dads do; while that certainly may be true in pure numbers, the fact is that dads do get custody probably more now, than ever and even if they don’t have outright custody; dads have more parenting time with their children during the week than ever before. Ms. WAGNER can help you fashion a custody agreement that is in your children’s and your best interests.
There are many factors the court will consider in making a custody decision; with a broad brush, the general factors that a court will examine in making a custody orders are:
- the general mental and physical health of each parent;
- which parent will encourage an open relationship with the other parent;
- the lifestyle of each parent;
- the stability of one parent over the other;
- depending on the child’s age and/or level of maturity, the preference of the child;
- the existence of abuse or neglect;
- who is the “psychological parent”.
In addition to the relevant factors that a court has to examine and consider in determining a custody decision, there is one which is specifically set forth in the statute —- domestic violence. The child custody statute makes a specific reference to domestic violence mandating that the court consider this very important factor.
Does it mean people who are guilty of domestic violence are never entitled to custody? The law does not say that so directly, but the “smart money” is not in favor of an abuser. Again, as we’ve discussed in another area on this site, the drafting of the pleadings and papers is crucial if you want to raise and prove domestic violence in a custody case. If the rules are not followed, as draconian as it sounds, the abused person may lose the right to raise the issue at trial and the court may not consider the domestic violence and have that claim lost.
Joint Custody – for all the talk about people in New York being awarded joint custody, the fact is that there is no statutory framework to allow a court to grant the parties joint custody. Joint custody, and that term has to be specifically defined, is usually the product of the parties’ own agreement that they write into their settlement agreements.
Joint custody must be defined. The most common type of joint custody we are seeing today, is that the parties’ agreement provides for joint legal custody, with physical/residential custody to one of the parents. For instance, if the mother and father have joint legal custody, with physical or residential custody to the mother, the children will live at the mother’s home during the week, subject to the time the father has his parenting time away from the mother’s residence.
A more purer form of joint custody, and one that is not really seen that often is where the parties share equal time with the children, 3.5 days per week per party or one week with mom, one week with dad.
Consult Ms. WAGNER regarding all of your joint custody questions.