CUSTODY OF YOUR CHILDREN AFTER DIVORCE

One of the hardest decisions to make when contemplating a divorce pertains to your children. 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 and your spouse cannot agree then the Court will be forced to decide the fate of your children’s custody. In New York, the “tender years” presumption has been abolished and the law is currently gender neutral. Therefore, if you are  the mother of the children this no longer means that  you will automatically get custody of your children.

The Court will consider many factors when determining custody, the most important concern for the Court is 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 children. In sum, --who has been there when they come home from school, put them to bed, wake them up for school, and assist them with homework?  The court will consider these and other factors along with the age of the child as it will want to maintain as much stability for your children as it possibly can.

If custody cannot be worked out between you and your spouse, you must start preparing your custody case immediately since every decision can have a detrimental effect on your ability to obtain custody of your children.