Diana is taking a limited number of contested custody cases at this time. Custody of the children of any couple is an extremely complicated thing. If the parties cannot agree on what is best for their own children, then a Judge will make the decision for you.
People commonly know that the Court’s standard for custody and visitation is what is in the “best interests” of the children, but do not realize how many factors go into that determination. Some of those factors, but surely not all of them, include who has been the primary caretaker of the child or children up to the point of litigation, religious upbringing, lifestyles of the parent, the stability and safety of the home environment, the fitness of the parent, criminal records of a parent, economic stability of a parent, a parent’s ability to provide the child or children with the most opportunity, the nature of the relationship between each parent and the child or children, the preference of the child depending on the child’s age, whether one parent has coached or coerced the children to choose them over the other parent, whether one parent has wrongly withheld the child or children from the other parent and a myriad of other factors. An attorney will be assigned, called an Attorney for the Child, to represent the child or children during any case involving them.
The most important thing to understand about “best interests” is that it is a legal term of art based on the determination of a judge. It is not, and never will be, what you believe is best for your child or children. You do not have the power, once a court is involved, to determine what is best for your children or what is in their best interests. That is all a legal decision.
Most people are aware of the terms “joint” custody and “sole” custody, but are not clear on what each means in the State of New York. In addition, those standards can be further broken down into “legal” custody which involves, in part, decision making issues and records of the children, and “physical” custody, which is where the child or children reside. By way of example, there can be sole physical custody to one parent subject to the visitation (parenting time) of the non-custodial parent, but those same parents can share joint legal custody so that both are involved in the major decisions for the children and have equal access to all of the children’s records. There can be a true joint custody where the parents equally share the child’s or children’s time and each have an equal say in the upbringing of the children, as long as the parents are able to communicate concerning the children. And, there can be anything in between. If this issue is put to a judge in a contested litigation, it is most common that someone will end up with primary physical custody because it will be assumed that the parents are not capable of communicating concerning the well being of the children.
Just like there can be separation agreements to avoid a trial in a divorce action, there can be custody agreements whereby a trial can be avoided and, hopefully, the parents can work out an arrangement that they both believe to be best for their child or children. These agreements carry a great deal of weight should there come a time when a change in the agreed to arrangement needs to be made, but they are not absolute. It is best to be certain that you can abide by any such agreement and that it is best for your children before you enter into it. Please see our flat fee rates for custody agreements at Fixed Fees.
If you find yourself in a custody battle, remember to keep the children out of it. Bringing them in will hurt everyone involved, and the Court tends to judge that type of thing very harshly. The child or children’s attorney will judge it harshly as well. These are adult topics, not appropriate for children to have to deal with. They will already be going through enough of an upheaval, particularly if this is an original custody determination, and their parents have recently split up.
There are methods to establish, enforce and modify these actions by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This allows these actions to be interstate.
If you need to discuss custody of your children or modifications of existing custody arrangements, please contact Diana at Contact or call 315-565-2760.