Who May Seek Custody
Child custody cases in New York stem from divorce proceedings, disputes between unmarried parents and claims made by non-parents. In a divorce proceeding, neither the mother nor the father is given an automatic preference for custody of the child. In cases involving a mother and father who never married, the court will only consider custody claims from fathers who have established paternity through a legal proceeding or if he signed an “acknowledgment of paternity” at or near the time of the child’s birth. In some instances, a relative, such as grandparents, aunts or uncles may seek custody if they are able to show that the parents are unfit. Abandonment, neglect and abuse may lead the court to find the parents are unfit to have custody of the child.
When the court grants physical custody of the child to a parent, the child lives with that parent and does not live with the other parent. An order of physical custody is always subject to an order of visitation for the noncustodial parent. If the parents share physical custody, the child spends time with each parent. Under a shared custody arrangement, the child does not necessarily spend an equal amount of time with each parent. Typically, factors such as the child’s school schedule or other commitments play a significant role in how much time the child spends at each parent’s residence.
Legal custody is the ability to make major decisions about the child, including issues about health, education and religion. A court order granting sole legal custody to a parent confers the right to make major decisions about the child upon that parent. The other parent may share in the decision-making process only if the court orders joint legal custody. Physical custody is a separate issue from legal custody; one does not dictate the other. As an example, the court may order the parents to share legal custody, but grant sole physical custody to one parent.
New York courts have jurisdiction over custody cases involving children under the age of 18. The child must have lived within the state for the six months leading up to the case, pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act. If the parents live in separate states, the child’s residence determines the proper site for the dispute. The court retains jurisdiction to modify orders when petitioned to do so by one of the parties.
Best Interests of the Child
New York courts decide custody cases based on what is in the best interests of the child. Factors that the court will consider in determining the child’s best interests include the parenting skills of each parent, whether one parent has the better ability to deal with a child’s specific emotional, physical and developmental needs, as well as each parent’s work schedule. Courts will look more favorably upon a parent who is able to devote more time to the child, as well as on one who has an adequate child care plan in place when he cannot be with the child. Depending on the age of the child, the court will also take into account the child’s wishes.