Children are obviously the most important part of any divorce case in Supreme Court or custody dispute in the New York Family Court. Instead of going over petitions and simple definitions I wanted to discuss in this blog actual trial strategy and factors pertaining to custody.
The Best Interest of the Child
This is a legal term always used by judges as the main factor when awarding custody. There are no absolute rules or measuring device to determine what parent is entitled to custody. There only exists certain factors to guide judges in deciding the issue of custody because each case involves its own very specific facts. At the end of a case a Judge will determine which parent should be the primary parent to meet all the children's emotional, physical, intellectual and material needs. This parent is the custodial parent.
The factors used when determining custody:
The following are factors judges use to determine the issue of custody. Not every case falls into one factor as usually several factors and multiple situations come into play when a court needs to determine custody issues.
- Parental fitness – This topic covers issues of abandonment, neglect or abuse of a child, substance or alcohol abuse, mental illness or physical disability, indiscreet sexual activity (adultery) and a dangerous lifestyle all are major factors in determining parental fitness.
- Domestic violence – Courts are required to consider issues of domestic violence in determining custody or visitation. For example in a Westchester County custody dispute the court awarded custody of the children to the mother despite the fact that the forensic expert, attorney for the children and the maternal grandmother had recommended custody to the father. The court found that custody should be with the mother because of the documented episodes of domestic violence inflicted upon the mother by the father.
- Ability to meet the physical and emotional needs of the children – A parent seeking custody must show that they are able to meet all of the children's physical and emotional needs. Emphasis is placed on the needs of a child in vulnerable positions and what parent can provide insight into the child's needs. Environmental stability is also important to a child's welfare. Court are usually reluctant to up root a child from their familiar environment.
- Primary Caretaker/ Psychological Parent – During the course of a marriage or relationship great consideration is given to the parent who can show they are the primary caretaker of the children. The primary caretaker, without hesitation, can identify the children's doctors, teachers, friends and other important people in the child's life.
- Quality of the Parent-Child Relationship – Another factor a court will consider is the comparison of a child's relationship to each parent, especially where that relationship is particularly good or poor. Communication and attachment between parent and child is essential. Court may also look into who the child naturally gravitates towards or who is "warmer" with the child.
- Child's Preference - The child's wishes are important but not determinative in a custody case. The main reason why that factor is not determinative is that there is too much room for parental manipulation. Often there are cases where one parent is the "fun" parent and the other is the strict parent. The younger the child the less likely a court will seriously consider their wishes about where they want to live. At 10 years old the courts have considered that to be too young for preference but at 15 years old generally the child's wishes are given great weight.
- Wilful Interference with visitation rights of the noncustodial parent – There is a strong public policy to promote and maintain a strong relationship between the child and the parents who live apart. Courts disfavor a wilful deprivation of a noncustodial parent's rights as a basis for awarding custody to the noncustodial parent. This includes unsubstantiated allegations of abuse or neglect made by one parent against another.
- Child Care Arrangements – Direct care and guidance by a parent rather than a third party is generally preferred. The parent's ability to personally devote time to the child and their needs is an important factor.
- Religion – In light of the constitutional protection of religious freedom the courts will tend to refrain from intervening with respect to a child's religious upbringing. The court can consider religion as a factor where the child develops actual ties for a specific religion or where specific religious practices threaten the health and welfare of the child.
- Separation of Siblings – The courts will resist a custody arrangement which separate siblings. Children will not be separated absent unusual and compelling circumstances.
- Prior Custody Arrangements – A prior agreement of the parents is only one factor to consider. There has been a shift away from favoring pre-existing arrangements to a more neutral balance of the factors to arrive at a determination of the child's best interests.
These are the major factors that I as a Westchester County Divorce and Custody Family Law Lawyer consider when developing strategy for a case, presenting the case to the Judge in court or at a trial.
All of the specific factual information comes for an interview with our clients to determine the best strategy to obtain the client's goals.
At our office we take the time necessary to explain all of our client's options, offer them advice so they can make the best decision for their case and their children.
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