Child Custody Stability


Long Island divorce attorneyOne of the hardest decisions to be made when contemplating a divorce, is which parent gets custody of the kids. Before you start moving forward, first lets define custody. Custody is the expression used to describe a parent’s supervisory relationship with their children. Physical custody is the right of the parent to live with his/her children. Legal custody is the right of a father or mother to make decisions for the son or daughter regarding the child’s schooling, religion, medical care, discipline, as well as other such everyday decisions. So although married parents enjoy both physical and legal custody, when they are divorced, a decision as to custody, both legal and physical, has to be reached. Ideally, this decision is reached through a settlement, on the other hand, in case the mother and father are unable to agree, the Court will ultimately decide. Until recently, NY followed the “tender years presumption” which declared that mothers were inherently better fit to assume the custody of children. This presumption has been abolished and the law is currently gender neutral.

How does the Court decide? The Court will consider a host of factors when deciding what’s in the best interests of the children. Factors the Court will consider include: (1) the parent’s physical and mental health; (2) the usage of drugs and/or alcohol; (3) sexual activity; (4) lifestyle; (5) neglect abuse or abandonment; (6) physical or psychological abuse and (7) the parent’s relative economical status. These are just a few of the examples which the Court will take into account. The Court will never give more weight to any particular element it considers. Instead the Court will go through the totality of the instances when producing a determination.

divorce attorney long islandNow, although they are not necessarily giving more importance to any factor, the fact is that stability plays a major role in deciding physical custody. Generally, Courts will look to offer physical custody to one parent with the eye to establishing long term stability for the child. So while recent case law harps to the point that stability is one of many aspects in figuring out custody, in practice stability will play a major part in the Court’s decision making process. Who is the primary care giver? Who’s there to pick them up from school, mend bruises and do homework? When the child wakes up, who do they see?

Clearly, moving out of the house doesn’t sound the death knell for custody. The spouse that moves out does not necessarily miss out on custody. What if your spouse is forced to leave to escape abuse? Clearly that spouse is not expected to stay in an unhealthy situation in order to maintain potential custody rights down the line. What if a spouse moves out to let the child to complete out the school year? Does a spouse who leaves the home implicitly concede custody to the other? Again, depends on the totality of the circumstances.

LEARNING POINT: The totality of circumstance will decide who gets custody. If custody cannot be worked out between the separating parties, consult an attorney quickly. You must start preparing your case immediately and shoring up your position. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.

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