MUST I SUE FOR CUSTODY?
Many of my clients do not understand that in order to get a divorce judgment the parties must first settle their issues of child custody. That means when you commence an action for divorce you must include in the Wherefore clause a request for custody. In doing so that does not necessarily mean you want exclusive custody but it is a good idea to start with suing for custody in order to protect your rights moving forward. An alternative might be to sue for joint custody especially where both parties can get along and have no problem with talking about the best interests of the children and making joint decisions.
There are two parts to a custody determination. The first point of inquiry is decision making and the second point of inquiry is the location where the children will the children reside.
That means that the parties need to decide who will be doing the decision-making as to the children and what will the custodial schedule look like. The Courts in New York favor joint custody wherever possible but sometimes the acrimonious relationship of the parties poses a problem such that only one party can be awarded custody.
Many parties think that because their spouse agrees to a divorce that they can get an uncontested divorce. That presumption is patently false is the parties do not deal with the issues of custody and child support and spousal support in the body of the Judgment roll.
If you are having problems deciding the above issues then you will most likely have to seek judicial intervention to move the matter forward. In court the Judge will typically appoint a lawyer for the children and sometimes order psychological evaluations for the children and parties. Parties are cautioned that this can be very expensive but worse, it can cause a lot of stress on the children so if you can solve the issues of custody beforehand, do so. However if there are serious issues of unfitness then it is probably best to ocnduct an investigation.
Many fathers are under the false impression that the Mothers always get custody. This is incorrect because the laws are gender neutral and more and more father s are suing for custody if they feel they are best suited to be the primary caregiver for the children.