Ask a Custody Lawyer: How Is Child Custody Determined in New York?

Custody is always a contentious part of any divorce, and if you are trying to ensure you have custody of your children, or fight against an ex-spouse you know is unsafe for your kids to be around, be sure to talk with a Queens, New York custody lawyer as soon as possible to have the best chance of winning your case.

The “Best Interests of the Child”

In New York, the standard for determining custody is always “the best interest of the child.” If abuse or violence is an issue in the relationship, then the best interest of the child become pretty clear and simple to work out. In the majority of cases, however, the court has to look at a wide variety of factors in making this decision.

Some of what the court will look at will be whether the child has any special needs and if one parent would be better able to take care of those needs in the other. The court will also look at how long the child has been living with either of the parents, whether the child’s primary home is still the primary home of one or the other parent, whether the child has any siblings and where they are living, and the basic home environment being provided by each parent.

In addition, the court will consider some things specific to the parents, such as their relationship with a child, any issues with alcohol or drugs, whether either or both have been providing well for the child already, and the overall mental, physical, and financial stability of each parent. Finally, the court will consider the wishes of the child, especially for older children. This will not be a deciding factor: only one factor of many.

Types of Custody

The court may decide to give joint custody to the two parents. In other cases, only one parent may be given custody of the child, with the other parent usually able to visit according to a schedule worked out by the two parties or the court. There are two types of custody: legal and physical. Physical custody, of course, refers to whom the child lives with. It’s possible for one parent to have sole physical custody with the other parent allowed to visit and still enjoying “legal custody.”

Legal custody refers to the right to make the most important kinds of decisions for your child, such as about their education and medical needs. In most cases, the court will default to giving legal custody to both parents unless there’s a very compelling reason one parent should not be allowed to have a say.

If you’re in a custody battle already or facing one soon, having a lawyer will mean peace of mind, and everything will go more smoothly than it could without a family law attorney to help. Contact the Law Offices of Joseph H. Nivin, P.C. for help in Forest Hills, Queens, and throughout the area.

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