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Who will get custody in New York?
September 23, 2018
What is Child Custody Law in New York?
Child custody law in New York City is complicated and diverse because the Courts have ultimate discretion as to who gets custody of a child. Firsts, the Court has to decide whether it has power to hear and adjudicate your case which can be complicated where the parties live in multiple states. In order for any court to hear your case, absent an emergency, your children will have had to have lived in that State for a consecutive period of six months.
It used to be that Mothers would always get custody, especially if they were the primary caretaker, that is not the state of the law presently. This is because gender of the parents does not determine who gets the children. If child custody has not been formally decided yet, then either of the biological parties may keep the child but it is not wise to alter the pattern of habitation and leave the state with the child using self-help. This is because the State of New York will likely order you to return the child. Rather, go to court and file a petition for a formal adjudication of custody, and state the facts as to why you are more fit to parent.
What are the factors the court use to determine custody?
The courts use the best interest analysis in determining who gets custody of the children. There are two types of custody one is physical custody where the courts determine the primary residence of the child. The second type involves decision making which is called legal custody the court favor joint legal custody but if the parents cannot get along then the courts will sometimes order sole custody since decisions about children sometimes cannot be made jointly where there is a high level of animosity between the parents,
There is also something called “spheres of custody decision-making, We see this a lot in Manhattan cases, where the courts will divide up the kinds of decisions one parent should make over the other, For example, if one parent has always made good medical choices for the children, they might get final say as to medical decision making whereas if one party is more religious then the other they might be awarded decisions related to religion.
Courts like to continue patterns in the interests of promoting the stability of the child and that factor weighs in heavily in any judicial determination. The courts also want to see who will likely foster a good relationship between the child and other parent, and you could be deemed per se unfit if you alienate the child against the noncustodial parent. The Court will also consider the child’ stated desire to live with one parent or the other and whether the child has other siblings in the household. The court will also see who they think is the primary caregiver, who has more time to devote direct care to the child, and who is the parent best able to guide the child through all aspects of the child’s life. The respective financial resources of each parent are also considered but in my experience is not at all determinative. Custody cases are generally determined after a hearing where the parties call witnesses and produce evidence or else settled between the parties by written settlement or stipulation. Most cases settle out of court before it gets to that point.
As and for visitation, it must be meaningful and it must occur regularly so the court will frequently award liberal visitation to the parent who is not living with the child. How much and how frequently the visitation will occur is determined usually after a fact-finding hearing.
Try to get a consultation with a New York custody lawyer before you try to represent yourself in a hearing because custody cases are complex.
By: Your Manhattan Custody Lawyer