Child Custody – Parenting Time
Child custody tends to be the most sensitive and emotionally charged area of family and matrimonial law. During a divorce proceeding, the physical and legal custody of a child, as well as parenting time, are usually addressed by the court, or resolved by way of settlement. However, Family Court can also determine issues of child custody and parenting time when there is no divorce proceeding. The court must determine the best interests of the child in determining which party should have custody and the amount of time that the child will spend with each parent.
The court will consider several factors before awarding custody. These factors may include:
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Current Circumstances: Is there a custody agreement in place that has been used by the parents?
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Siblings: Under most circumstances, the Courts will attempt to keep siblings together. However, there are situations where the best interests of the children require that they be separated.
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Stability of Environment: Where possible, it is preferable for the child to remain in the same environment, neighborhood, school, etc.
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Financial Circumstances of the Parent: The court will generally want to ensure that the child has a suitable home, adequate food, clothing, etc.
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Parental Fitness: The court will want to ensure that the custodial parent is stable and can provide a safe environment for the child. The court will be influenced by whether one parent suffers from an alcohol or drug problem or mental or emotional instability. A criminal history or a history of being physically abusive to the other parent or the children will likewise influence a custody determination.
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Preference of the Child: This has a greater impact as the child gets older.
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Relationship with and between the Parents: Is one parent alienating the child from the other? Does the child have a significantly closer relationship with one parent? Does that child have a strained relationship with one parent? Will the custodial parent foster a positive relationship between the child and the non-custodial parent?
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Types of Custody: In New York, there are two aspects of child custody: physical custody, and legal custody. Physical or residential custody relates to where the child resides, and legal custody relates to who has decision-making authority concerning the child. Both types of custody can either be sole, where the primary rights are given to one parent, or joint, where both parents share the rights.
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Child Abuse and Neglect: Charges of child abuse and neglect are often raised within the context of a custody dispute. Sometimes, such proceedings are initiated in Family Court when no divorce action is pending. Frequently these allegations are serious and have merit. On occasion, they are falsified by one spouse in an effort to gain an advantage in a custody proceeding. Our skilled New York attorneys can help you address these matters whether your spouse is harming your child, or whether unfounded allegations of abuse or neglect have been brought against you.
