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New York Child Custody
Child Custody in New York

Chapter 14 of The Consolidated Domestic Relations Laws provide that the court determine custody by considering several factors related to the best interest of the child.

New York child custody laws protect the best interests of the child. The best interests standard means the court considers:

  • the parents' abilities to care for the child, especially if the child has special needs;
  • the parent who has been the child's primary caregiver;
  • the parents' work schedules, particularly if they limit the time available for the child;
  • any parental health issues;
  • any allegations of domestic violence;
  • parental cooperation in raising the child; and
  • the child's preference.

The family courts encourage divorcing parents to work together to decide how they want to raise their child after divorce. When divorcing parents agree to their parenting plan, the accord reflects their willingness to raise and nurture the child while living separately. When parents fail to agree, the court intervenes to resolve issues of child custody, visitation rights, and child support.

Custody may be physical custody, legal custody, joint custody, or sole custody. Physical custody is residential custody; it identifies where the child should live. Legal custody defines the rights and responsibilities of the parents with regards to the child's upbringing. Joint custody means that both parents make major decisions about the child's needs as joint custodians; they jointly decide together what's best for the child. With sole custody, only one parent has the right to make the major decisions concerning the child.

Under child custody laws in New York, the family courts must weigh all relevant factors that could affect the child's welfare. When determining whether or not joint custody is plausible, the family courts considers:

  • the child's wishes or preferences as to custody, provided that he or she is mature enough, which is considered when the child is 12 years old or above;
  • the child's relationships with his/her parents, siblings, and other family members;
  • the parents' wishes or preferences as to custody;
  • the parent who has been the primary caretaker of the child;
  • the parents' work schedules, availability, and parenting skills;
  • the parents' ability and willingness to encourage a continuing relationship between the child and the other parent;
  • the nature of parent-child relationship;
  • any history of domestic violence, child abuse, negligence, or substance abuse; and
  • the mental or physical health of the parties involved in the proceedings.

Mandatory Parenting Class

New York courts have the right to require divorcing parents with minor children to complete a parenting class before granting a divorce. It is the Judge's discretion, so he or she may require you to take a parenting class. Whether or not you are required to do so, we highly recommend taking the Children In Between parenting class for the benefit of your child(ren).

Modification

The court will modify a custody order when one parent establishes that there has been a "substantial change in circumstances" since the court issued the first order. The change in circumstances must outweigh the harm of disrupting the child's environment because the court always prefers to maintain stability.

Joint Custody Preference

New York law expresses a preference for parents to share as equally as practically possible in the custody of a child in a divorce case.

New York child custody laws prohibit the court from awarding custody in the presumption that joint custody is suitable without evaluating the aforementioned factors. Either joint custody or sole custody will be granted. In many cases, sole custody is considered if the child's welfare is at risk with one of the parents. If a parent is not awarded with any form of custody, visitation may be granted upon the court's discretion.

Parental Conduct

In addition to finding a parent unfit because of substance abuse or abuse or neglect towards a child, the courts also consider the conduct of both parents during the course of the marriage, and the impact of parental behavior on the child.

Visitation

The New York courts have full discretion when determining visitation between children and parents. The courts can establish visitation between one or more parent, even if both parents agreed upon a no-visitation policy. A parent who is not custodial can seek visitation, and unless there is a concern for the child's safety, the parent has unsupervised visits with his or her child on a schedule convenient to both parents and the child. Supervised visits may be required when the court is concerned about the parent's behavior. This means that a third party, not the other parent may be present during the parent's visits with the child. In some cases, therapeutic supervised visits may be ordered. This means a mental health professional is the supervisor and helps improve the parent's parenting skills during the visits.

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