Brian D. Perskin & Associates

How is Child Custody Determined in New York?

Agreeing on a child custody plan is one of the hardest components of divorce. Parents fear that they will lose custody of their children, and that their relationship will suffer. Many grey areas can be found in child custody laws, and most parents are clueless as to the intricate nature of the custody process.

Different Forms of Child Custody and Visitation

There are different forms of child custody in New York State, and each represents a vastly different type of custody. Physical custody refers to where children will live, whereas legal custody can be established to allow a parent to make major decisions regarding their children. Both physical and legal custody can be either sole or joint, meaning both parents will be granted the same form of custody. Visitation is often awarded to the non-custodial parent (NCP), and this can be supervised or unsupervised. It is important to know the differences in types of custody and visitation in New York before proceeding with a legal action.

The Best Interest of the Child

Judges have to consider many different factors while determining custody, but their decision always has to be in the best interest of the child. The most common factors include:

  • The child's age, sex, and physical and mental health
  • The parent's mental and physical health
  • The parent's lifestyle
  • The emotional bond between the parent and child
  • The parent's ability to provide the child with food, shelter, clothing, and medical care
  • The child's regular routine
  • The quality of the child's education
  • Any history of child or spousal abuse
  • The child's preference, if the child is above a certain age
  • The ability and willingness of the parent to encourage communication and contact between the child and the other parent

A parent’s lifestyle and their mental or physical health are two major aspects a judge will take under advisement before ruling in a custody dispute. While health issues or a disability won’t disqualify a party from retaining primary custody, the severity of the illness or disability will affect the decision. The type of lifestyle each party has will directly impact the way children are raised, which is why a judge needs to make sure that the primary care parent (PCP) is able to provide a safe, stable, and consistent home environment. A party who routinely travels for work, or fails to provide a suitable living situation for their children will most likely not be awarded residential custody.

A Child’s Wishes Matter

Depending on the age and maturity of a child, a court may ask the child where they would like to live. There is no specific age in which a child’s wishes will be considered, but generally it is after the child becomes a teenager. A change or modification of custody will not occur just because a child says they want to live with their other parent or guardian. There needs to be a significant change in circumstance, or a sufficient reason, for a custody order to be changed.

A child may wish to move-in with their other parent for many reasons, including differences with a new stepparent, an unhealthy home environment (such as abuse), or because their custodial parent is relocating to a new city. The court’s main goal is to provide a child with a healthy, happy, and stable home, which sometimes means a change in residential custody.

Co-Parent to Ease into New Custody Arrangement

A cornerstone of child custody agreements are effective co-parenting plans. Former spouses who learn how to function in a new co-parenting relationship will often have less contentious and happier custody arrangements. If parents are on the same page when it comes to custody and raising their children, then there is a better chance of reaching a custody and visitation agreement.

Parents must be able to communicate and interact with each other if they wish to co-parent successfully. Electronic communication, such as e-mail or websites and apps, provide an alternative platform compared to traditional forms of communication for hostile parties. Children benefit greatly from being positively co-parented, so it is in the child’s best interest if parents are able to set their differences aside and focus on providing a happy, healthy, and loving upbringing.

Parental Alienation Harms Children

Parental Alienation Syndrome (PAS) is a very serious matter that courts do not take lightly. PAS occurs when one parent actively tries to destroy their ex’s relationship with a child or children, which is not in the child’s best interest. This can be done by bad mouthing the other parent, purposely withholding visitation rights, or venting about the other parent around the child.

PAS is a form of brainwashing, and can be detrimental to a child’s mental health. They may begin to think that their parent’s divorce was their fault, or that they are no longer loved or wanted. Signs of PAS include a deteriorating relationship between parent and child, a change in the child’s attitude, or the child stating that they do not want to visit the non-custodial parent.

It is extremely important to address Parental Alienation Syndrome as soon as signs of brainwashing become noticeable. Because parental alienation is often done in secret and underhanded ways, a parent needs to work with an attorney to build a case against their ex. A child’s health and best interest should always be the top priority in a divorce or custody proceeding, and it is impossible to make this happen if alienating is not quashed as soon as possible.

NY Child Custody Advocates

Child custody and divorce actions can be intimidating, as the fear of losing custody of a child is a gut-wrenching feeling. It is highly recommended that all litigants retain the services of a qualified matrimonial or family law attorney. The law firm of Brian D. Perskin & Associates P.C. focuses exclusively on divorce and custody cases, tailoring their practice to provide thorough and expert representation clients throughout New York City and Long Island. For more information, or to schedule a free consultation, contact Brian or a member of his team at 718-875-7584 today!