Child custody matters in a New York divorce

New York law bases child custody decisions on what would be in the child’s best interests.

A New York parent heading for divorce is likely to have many concerns about how the child custody arrangement will look. Every family is unique and presents a different set of issues to consider in a child custody plan, but in every instance, the New York court is laser-focused on determining what custody and visitation arrangements will be in the child's best interest.

Custody basics

Two types of custody will have to awarded: physical (who will have care and control of the child) and legal (who will make major life decisions like medical, educational, religious and so on). Either kind of custody can be granted solely to one parent or shared between them.

In addition, the parent with whom the child stays with less often will likely be granted visitation or parenting time with the child, unless it would not be in the best interest of the child.

Custody decisions

In most situations, the divorcing spouses will try to negotiate a marital settlement agreement with the help of their attorneys in which they decide together how all legal matters will be resolved, including custody and visitation.

It is smart to try to come to agreement if possible in most instances, because otherwise custody and visitation matters will be decided by the judge in the divorce case. While the judge has legal direction in New York law about how to make those decisions, he or she will not personally know your child or family issues; with a negotiated agreement, at least each party has input.

In New York state court where divorces are finalized, sometimes the judge will refer the divorcing couple to mediation to give them another chance to negotiate their custody issues to agreement. In mediation, a neutral third-party professional (the mediator) with special training in dispute resolution will try to coach the parties through their differences to agreement.

If mediation is not ordered or fails, the judge is required under New York law to consider the child's best interests, and the family and each parent's circumstances. Still, the judge has a fair amount of discretion in a custody matter as there are often several important factors that impact the child's best interest.

However, New York statute provides that neither parent has an automatic right to custody.

Many states include in their custody laws specific lists of what factors a judge is to consider in determining a child's best interests in a custody matter. New York law is more general, but New York case law sets out many relevant factors for consideration such as parental care and affection, the impact on the child of continuing the present living situation, parenting ability, parenting history, alcohol and drug use, home environments and more.

New York law puts severe restrictions on custody and visitation rights when a party has been convicted of certain crimes or in situations of domestic violence or child abuse, and the judge must give great weight to this evidence.

This is an introduction to New York custody law, which is actually quite complex. It is in a parent's best interest to consult with and retain an experienced child custody attorney for advice and representation throughout the divorce process.

In Brooklyn, the Law Office of Virginia Geiss serves clients in child custody and other family law matters.

Keywords: New York, child custody, divorce, best interests, parent