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One of the hardest decisions to be made when contemplating a divorce is which parent will get custody of the children. Before moving forward, first we need to define custody. Custody is the term used to describe a parent’s supervisory relationship with their child. Physical 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. Hopefully, an agreement regarding custody will be reached, however, if you cannot agree, the Court will ultimately decide. In New York, the “tender years” presumption has been abolished and the law is currently gender neutral.

How does the Court decide? The Court will consider many factors when deciding what is in the best interests of the child. Some of the things that the Court will contemplate are: (1) the parent’s physical and mental health; (2) the use of drugs and/or alcohol; (3) stability; (4) lifestyle; (5) neglect abuse or abandonment; (6) physical or emotional abuse and (7) the parent’s relative economic status. When looking at the lifestyle of the child, the Court will consider the totality of the circumstances when making a determination. However, Courts look to grant physical custody to one parent with an eye on establishing long term stability for the child. In sum, the Court will look at--who is the primary care giver? Who is there to pick them up from school, mend bruises and do homework? When the child wakes up, who do they see?

If custody cannot be worked out between you and your spouse, then quickly consult an attorney. 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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