One of the hardest decisions to make when contemplating a divorce pertains to the custody of your child. Custody is the term used to describe a parent’s supervisory relationship with their child. Physical or residential custody is when the parent resides with his/her child. Legal custody is the right of a parent to make decisions for the child regarding education, religion, medical care, discipline, and day to day events. You should try your best to reach an agreement pertaining to custody because if you cannot then the Court will be forced to decide your fate. In New York, the “tender years” presumption has been abolished and the law is currently gender neutral. Therefore, just because you are the mother of the child you will not automatically get custody.
How does the Court make this most important decision? The Court will consider many factors when determining what is in the best interests of the child. A few of the factors that it will consider are: (1) who has been the primary caretaker; (2) the parent’s physical and mental health; (3) the use of drugs and/or alcohol; (4) neglect abuse or abandonment; (5) physical or emotional abuse and (6) the parent’s stability. When looking at the child’s lifestyle, the Court will consider the totality of the circumstances and will look with an eye on establishing long term stability for the child. In sum, --who is there when they come home from school, put them to bed, wake them up for school, and do homework? The court will consider who is the primary caretaker along with the age of the child as it will want to maintain as much stability for your child as it possibly can.
If custody cannot be worked out between you and your spouse, must start preparing your case immediately. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.
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