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Child custody is a particularly tricky aspect of the divorce process, as it involves both spouses coming together in an attempt to divide the indivisible: their children. When a marriage ends, children are heavily affected, and they must suddenly cope with drastic changes in their living situations and how they spend their time on a daily basis. Even amicable divorces can cause a strain on the children and the parents alike, but less easily settled divorces can prolong a custody battle and make it even more stressful on exhausting for all parties involved to come to a compromise. When the two spouses cannot come to an agreement on their own, more drastic measures must be taken. Divorce seekers should bear these facts in mind about child custody as they begin proceedings so that they know what to expect.
Physical Custody Can Be Especially Contentious.
In New York, there are several different types of child custody, but they fall under two umbrellas: physical custody and legal custody. Physical custody means that the parent has the right to have the child reside with her or him. The court recognizes that it is in the best interests of a child’s development and emotional well-being to have a relationship with both parents. Fifty-fifty custody is not often possible, however. The proximity of one residence to a school, one parent’s available time for taking care of a child, and even the differences in the relationship between the child and each of her or his parents can all determine who gets primary custody. In most cases, one parent will be the custodial parent and the other will be the non-custodial parent. The latter parent, also known as the parent of alternate residence, will enjoy visitation rights according to a schedule set down in the divorce agreement or court order.
Legal Custody Is Just as Important as Physical Custody.
A judge will make an informed decision based on what he or she thinks is best for the child. If one parent has legal custody, he or she is responsible for making major decisions pertaining to the child’s life, including those decisions regarding the child’s education, religion, and health. However, except in cases where one parent poses a danger to the child, courts will almost always award joint legal custody.
If You and Your Spouse Cannot Reach an Agreement on Child Custody, the Court Will Decide on Your Behalf.
If you and your spouse cannot agree on who should have custody, the court must decide for you. When awarding custody, the court always considers the best interests of the child. Factors contributing to the court’s decision include: the mental and physical health of both parents, any history of domestic violence by either parent, the child’s preference, each parent’s work schedule, whether one parent has been the primary caregiver or nurturer of the child, the child’s relationship with siblings and members of the rest of the family, and each parent’s ability to encourage and foster the child’s relationship with the other parent.
Because children are largely subject to their parents’ wishes and whims, it is they who are most impacted by the results of a divorce. For that reason, unlike matters such as alimony and the distribution of assets, the needs of the children must come before those of the parents as much as possible. If you are concerned about a looming custody battle, contact an attorney with experience in family and marital law for guidance. The sooner that you can prepare for child custody negotiations, the better able you will be to find a compromise in your children’s best interests.
