By Greg Tolland -
Before moving forward, first lets define custody. Custody is the term used to describe a parent’s supervisory relationship with their child. Physical custody is the right of the parent to reside with his/her child. Legal custody is the right of a parent to make decisions for the child regarding the child’s education, religion, medical care, discipline, and other such day to day decisions. So while married parents enjoy both physical and legal custody, once they are divorced, a decision as to custody, both legal and physical, must be reached. Hopefully, this decision is come to through an agreement, however, if the parents cannot agree, the Court will decide. Until recently, NY followed the “tender years presumption” which stated that mothers were inherently better fit to assume the custody of young children. This presumption has been abolished and the law is currently gender neutral.
How does the Court decide? The Court will consider a host of factors when deciding what is in the best interests of the child. Factors the Court will contemplate include: 1 the parent’s physical and mental health; 2 the use of drugs and/or alcohol; 3 sexual activity; 4 lifestyle; 5 neglect abuse or abandonment; 6 physical or emotional abuse and 7 the parent’s relative economic status. These are just a few of the examples which the Court will consider. The Court will not give more weight to any particular factor it considers. Instead the Court will consider the totality of the circumstances when making a determination.
Now, while not necessarily giving more weight to any factor, the reality is that stability plays a large roll in determining physical custody. Generally, Courts will look to grant physical custody to one parent with the eye to establishing long term stability for the child. So while current case law harps on the fact that stability is one of many factors in deciding custody, in practice stability will play a major part in the Court’s decision making process. Who is the primary care giver? Who is there to pick them up from school, mend bruises and do homework? When the child wakes up, who do they see?
Clearly, moving out of the house does not sound the death knell for custody. The spouse that moves out does not necessarily lose out on custody. What if a spouse is forced to leave to escape abuse? Clearly that spouse is not forced to stay in a dangerous situation simply to maintain potential custody rights down the road. What if a spouse moves out to allow the child to finish out the school year? Does a spouse who leaves the house implicitly concede custody to the other? Again, depends on the totality of the circumstances.
LEARNING POINT: The totality of circumstance will decide who gets custody. If custody cannot be worked out between the separating parties, consult an attorney quickly. You must start preparing your case immediately and shoring up your position. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.
If you found this article helpful contact a Long Island divorce attorney today or visit http://www.divorcelawattorneyslongisland.com
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