As divorce and family law attorneys in Westchester County, New York we know one of the primary issues facing families is where will a child or children reside in the event the parents separate or divorce.
Child custody is a complex issue in New York State, and that is why it is important to at least know the basics of child custody and to hire an experienced divorce and family law attorney to guide you through the process.
In any situation involving child custody, the parents should try to reach an agreement regarding custody issues. Sometimes an agreement as to custody is difficult to reach due to conflicting personalities and/or goals of the parents, grandparents or other family members.
The Petition for Custody in New York
A petition for custody may be filed by one party or by both, and filing this custody petition is the first step in the process. There are two issues a Court must resolve involving a child or children: Physical Custody and Legal Custody. Both parents have equal rights to physical and legal custody of the child. Once a child turns 18 years old the Court no longer is involved in custody issues.
The legal standard in all custody disputes (Physical and Legal Custody) is the "best interest of the child."
Physical Custody in New York State
Physical custody, also known as, “residential custody” is the designated primary home of the child or children. That parent is responsible for the actual physical care and supervision of a child. In a joint physical custody arrangement a child lives with each parent for an equal amount of time. If a child or children live with a parent more than 50% of the time, they will be designated the physical custodial parent. A noncustodial parent will have visitation or parenting time with the child.
Legal Custody in New York State
The parent who has legal custody has the right to make major decisions about the child’s health, education, safety, and welfare. If sole legal custody is granted only one parent makes major decisions for the child. If joint legal custody is granted both parents must reach an agreement as to major decisions involving the child together.
What are the factors a New York Court will use to determine physical and legal custody?
- The child’s relationship with each parent.
- Any adjustment a child may need to make to their home, school, and new community.
- The distance between the parents’ homes. The closer parents reside the better for the parents and the child.
- The physical and mental health of each parent.
- Each parent’s ability to foster a positive relationship between the child and the other parent.
- Each parent’s past involvement with the child at home and/or school.
- Each parent’s ability to address the child’s needs.
Do New York Courts Favor Mothers over Fathers?
Both parents have equal rights to physical and legal custody of the child regardless of gender. Legal fathers have equal rights as legal mothers to fight for custody of their child.
In New York State the reality is that physical custody (where the child gets to reside) is granted to mothers more often than to fathers. There are various reasons for this, such as:
- If parents are not married, the mother is presumed to be the legal parent and obtains custody by default until the father establishes paternity. Once paternity is legally established a father can then petition for custody of a child.
- If a mother has been primarily responsible for raising a child a judge will take that into consideration in determining child custody. Fathers should always be as active as possible in raising a child. In some families, traditional roles are established early on, setting the mother as the more hands-on in child-rearing and that will automatically give a mother an advantage as a custodial parent. A father should strive to be equally as hands-on as a mother in child-rearing.
The above are typical family dynamic situations. Although these examples may exist a legal father does not automatically lose a custody dispute against a legal mother. The father must show he has been an involved and responsible parent. Setting forth specific examples in a custody petition will increase the likelihood the father will obtain custody. A father should also set forth he can properly raise a child, and this will give the father an advantage during a custody dispute.
Custody Attorneys in Westchester County
At Proto, Sachs & Brown, LLP we understand the stress and uncertainty parents face during a custody dispute. Our attorneys have decades of experience representing both mothers and fathers. Do not start your legal battle alone. Hire our experienced attorneys to protect your rights and the rights of your child or children.
Parental rights in New York are a dense subject matter with complicated issues well beyond this article. Our offices are located in White Plains and Peekskill, New York. Our knowledgeable team can walk you through every step of the process and help you to navigate the complexities of the court system and the issue of parental rights.