New York Divorce Guide

Child Custody

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Q. My husband wants a child custody schedule that heavily favors him. He calls this equal parenting rights. I’ve always taken care of the kids and have the parenting skills in the family. Do NYS child custody laws and family courts award parenting time to the mother usually? And how can I avoid a custody battle? Do I need to give in to shared parenting?
You have many questions there. New York custody laws instruct the family court to not give preference to one gender over another, although mothers win custody cases at least three-quarters of the time. Parenting skills are important, however custody cases aren’t decided by whose skills are better, but rather on what is in the best interests of the child as seen by the family court. Kids and divorce mix best when their interests are put ahead of the parents. Custody battles happen when one or both parents dig their heels in, and make accusations against the other’s parenting skills and/or parenting styles. If you go headlong into a custody battle, it’ll get ugly. Avoid it at all costs. In any case, parents get the opportunity to agree on a Parenting Plan, Child Custody Schedule and Child Visitation Schedule. If you and your spouse fail to reach agreement, the family court imposes its own plan(s), so do your best agreeing on shared custody.

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Q. Please explain how New York divorce laws define child custody.
New York statutes (or laws, if you like) define child custody in two ways. The first is the right and responsibility to make decisions for a child (legal custody). The other is the decision about where the child will live (residential or physical custody).

Q. What factors play into the family court’s decision when deciding child custody?
Guided by the best interests of the child, courts will consider:

  • Which parent has been the primary care-giver
  • The parenting skill of each parent, strengths and weaknesses and their ability to care for the children
  • Physical and mental health of each parent
  • The child’s wants, needs and desires
  • The child’s relationships with siblings and other members of the family
  • Evidence of any domestic violence
  • The degree to which each parent is willing to work with the other parent for the children’s welfare

Q. I’ve been told that the Mother gets custody most of the time. Is that true?
The courts are guided by laws passed by the Legislature, and are instructed to not favor one gender over another. The reality however, is that most courts believe children are better suited with their Mother as primary custodian. More than 3/4 of all custody awards go to mothers today.

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Q. Phrases such as joint custody and sole custody are casually used it seems. What are the differences in custody awards?

  • Joint custody signifies that the parents make major decisions about the children together, such as education, health, and religion. The everyday decisions are made by the custodial parent
  • Sole custody means that just one parent makes decisions without regard to the wishes of the other parent. Some types of decisions included in the right of legal custody are: where your child goes to school, whether your child gets surgery and what kind of religious training your child receives

Q. If one gets awarded sole custody, will they have to allow visitation by the other parent?
Courts will generally encourage involvement by both parents, unless evidence is presented that puts the child in an unsafe environment.

Q. Are grandparents considered eligible for child custody?
You may be asking about visitation for grandparent, so we’ll address both. Grandparents are eligible for custody when there is evidence that the parent(s) have demonstrated that they are not fit to care for the child. Grandparents must petition the court and be prepared to show evidence why a custody award to them is in the best interests of the children. For visitation by grandparents, the court must be petitioned to allow regular visitation for them. Often this becomes part of their adult child’s divorce request. Aunts, uncles, and other relatives are also eligible for child custody under certain circumstances.

Q. My husband claims that I won’t get much if any child support to help me with my custodial responsibilities. Is there something on-line that I can look at to approximate how much he will have to pay since I know what he makes?
Yes, a web site called All Law makes available a child support calculator for your use.

Will the Ex manipulate you with the kids’ schedule?

Q. If a court denies my request for custody, do they have to explain why?
Yes, when a court makes a decision on custody, it will provide a finding, which will detail the reasons behind the decision, and provide that to both parties. If one of you fails to show up for the hearing, the court will likely issue a default finding to the other parent.

Q. What if my boyfriend and I never married, but had children and are now divorcing? Does he have the same custody rights if we had married?
Unless you both signed what is called an Acknowledgment of Paternity, he has no custody or visitation rights.

A parent is entitled to reasonable parenting time unless the court finds, after a hearing, that the exercise of parenting time would seriously endanger the child’s physical, mental, moral or emotional health.

[Domestic Relations Laws – Article 13 – Section 240]

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