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One of the hardest decisions to make when contemplating a divorce is which parent will obtain custody of the children. First, we should define custody. 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. Hopefully, an agreement regarding custody will be reached because if you cannot agree, then the Court will ultimately decide the fate of who gets custody of your child. In New York, the “tender years” presumption has been abolished and the law is currently gender neutral.

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) 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 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 the primary care giver? Who is there to pick them up from school, mend bruises and do homework? Who is there when the child wakes up and goes to bed?

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