Child Custody

Whenever a divorce case is highly litigated, more often than not, child custody and visitation are at issue. Although the Domestic Relations Law, Family Court Act of New York and precedent cases all use the word custody, defining that term is difficult because there is no one definition found in any statute or case which mandates all other courts toward the use of a precise definition.

A lawyer's advice is crucial in helping you define custody and visitation issues during the divorce process that would be in effect post-divorce. In a Divorce Judgment, the Judge must define either the husband or the wife as the "custodial parent", and vice-versa one of them must therefore become the "non-custodial parent." The reason this must be is that child support must flow to the custodial parent, and the Divorce Judgment must make it clear which spouse shall obtain financial support for the child.

Two Words to Describe Our Firm's Competitive Superiority as New York Child Custody Lawyers: Ivy League

New York law on custody and visitation is perhaps more open to misuse and confusion than any other part of a divorce -perhaps a close second would be valuation and subsequent equitable distribution of professional licenses and practices as well as other marital business interests in long-term marriages. The different varieties of custody and visitation, within the parameter imposed above, can be as varied and imaginative as the lawyers who devise them. But what those varieties are, you will not know, and without a lawyer, the time to have fought for them --during the early stages of a divorce proceeding-- has long passed. There is sole legal custody, joint legal custody, split residential custody, joint physical custody and/or joint residential custody, and as if that is not confusing enought, there is one animal in the custody jungle that has no name: in some instances the children stay in the house after the divorce, the house is not sold, and in fact neither parent gets it: the parents flip living in the house weekly or bi-weekly until the children start college. It's a win-win for the children and a lose-lose for the parents vis-a-vis the house itself. In terms of the best case scenario for children who are between 5 and 12 and who have lived in an intact nuclear family in one home their entire life, it is hard to imagine a more stable environment which on its face appears to be in the "best interests of the children" than this one just mentioned, as they continue to live in the home and don't feel the loss of a parent as much as the trauma associated with the news that "your father's moving out, we're getting a divorce." They are traumatized by the loss of one parent as least as possible, and the parents get their just deserts: they each have to move out for a certain number of days or weeks or months. These children would happily say this in such a zero custody and all parenting time scenario: "So mommy is home with us for (say) two weeks, and then, we don't even have to visit daddy and sleep on his couch, because daddy is then going to be with us in this house for the next (say) two weeks." As you can imagine, this takes a lot of effort on the part of both the parents and their lawyers to pull off. There is nothing in New York child custody law or New York's divorce laws or case law which prevents the parties to agree to any rational framework for how a child will be raised post-divorce, and what their rights and obligations shall be in raising that child.

There is a trend in California, and now in New York, toward less child custody litigation and trials on child custody by the attorneys' negotiating and structuring joint parenting, with equal involvement by both parents, so long as the mother and father can act in a civilized and cordial manner toward each other. The Court may appoint a Law Guardian to represent the child or children in a heated child custody litigation. Once the custody issue is determined, interference by one parent in the relationship that a child has with the other parent is grounds for modifying custody. For example, Parental Alienation Syndrome is recognized by the Courts of New York as being detrimental to the child; interference by one parent with the parenting or visitation of the other parent; removal of the child to another state or country.

Child custody disputes are the most emotional and psychologically taxing, and often highly litigated between two confrontational and unwilling-to-compromise parents. However, at times a custody trial is inevitable, as in for example, where one party to a divorce has every intention of relocating from New York to another state. The farther the state from NY the more litigated it is, because it significantly impacts on the other parent's time with the child after the divorce. Most important, you should have on your side an attorney who has the genuine compassion to see that you and your child's best interests are met. That attorney ought have, in an ideal world: experience and brains. For, it does not matter that you pay less for an attorney 5 years out of law school if in the end you lose custody; and it does not matter if the attorney with only 3 years of experience is smart, because the other part of the equation is "experience:" a trial attorney with 100's of court appearances will teach the novice attorney a few things. We guarantee it.

NY Courts on custody cases look to the following check list of factors in awarding primary physical custody during a custody trial.

Factors Determining Child Custody In New York Courts

• Mental health of each patient
• Spousal Abuse
• Domestic violence and who caused it
• Primary Caretaker
• Adultery
• Child Abuse
• Parent's work schedule
• Need for supervised visitation
• Willingness of one parent to foster the child's relationship with the other parent
• Criminal conduct of parent
• Child's refusal to be with one parent
• Physical health of each parent
• Previous criminal convictions
• Which parent fosters more intellectuality and morality
• Physical location and locale of where each parent intends to reside with the child
• Intent by one party to relocate to another state
• Violations of any Court orders during the custody battle
• Intent to relocate to another country (make sure that country is a signatory to the Hague Convention on Civil Aspects of International Child Abduction)
• Forensic report by psychologist or psychiatrist
• Expert testimony by psychiatrist or psychologist

Who you choose as your attorney to professionally fashion how you raise your child after the divorce can, and does, mean the difference between a future with your children post-divorce, where you are not shut out of that child's life or a future frought with conflict with your ex on how to raise them, when to see them, or worse yet, brainwashing of the child against the other parent and so on. We see parents coming to our firm for help on custody many years after a divorce because the original lawyer handling the divorce did not properly address the issues at that time. In the end, going back to court years after a divorce costs you more in legal fees. And the die is cast on custody by then. As judges do not allow children to be treated as ping-pong balls, they rarely award physical custody back and forth between parents. And Judges do not transfer custody lightly after a divorce. Our guarantee to you is that if you want to fight for the right to be an involved parent, we will go through every legal channel to get you whatever future you believe is in "the best interests" of your child.