Determining child custody can be the most challenging aspect of the divorce process. It’s important to know the facts in order to take the necessary steps to achieve what’s best for you and your children. Speak with your attorney about your options and how best to position yourself during this challenging time. Gathering key legal advice about custody can help you prepare for the challenges ahead.
Courts typically want children to benefit from time with both parents, so prepare yourself to hear the truth about the reality of your goals and expectations. The more information you have, the easier it will be to plan for you and your children’s emotional well-being.
First, it’s important and helpful to understand the legal terms with respect to custody. For the purpose of this article, I will discuss terms and custody in New York State (but know, divorce laws vary from state to state; which is why it’s important to discuss your situation with a lawyer practicing in your state.)
In New York State, child custody contains two parts: legal custody and residential (physical) custody.
- Legal custody is the right and responsibility to make decisions about major issues affecting the child including education, medical and healthcare, therapeutic issues, and religion. In some cases, major decisions may also include decisions regarding child care, extracurricular activities, and camp.
- Residential custody and/or physical custody pertains to where the child will physically live, and the access schedule for the non-custodial parent.
Sole Custody vs. Joint Custody
There are two types of legal custody in New York State: sole custody or joint legal custody.
- Sole custody: One parent will make major life decisions. Sometimes the court will require a consultation. Other times, the parent who has sole legal custody must inform the other parent about the decision but the court may not require them to consult with the other parent.
- Joint custody: Both parents contribute to major life decisions and jointly make such decisions; the parent with whom the child is residing is generally responsible for day-to-day decisions. At times, you may also have a hybrid model-joint legal custody with one parent having final decision making if the parents cannot jointly agree upon a major decision. Another common term is “zones of decision making,” whereby one parent makes decisions about medical issues and another parent may make decisions about education. Essentially, the parents are dividing up the decision-making.
In determining legal custody in a divorce case, the Court will base their decision on the best interests of the child. Some issues that may define parental custody include your children’s special needs, learning differences, where they attend school, their wishes (in the case of older children), future goals, mental health issues (for parents as well as children), parental use of alcohol/drugs, and any domestic violence issues.
The secret key to gaining primary custody
But while all of these issues are important, the Court’s most important factor in determining custody might surprise you. That factor is which parent is most likely to foster a continuing relationship between the children and the other parent.
In fact, if I could give my clients a mantra as advice regarding custody it would be “fostering, fostering, fostering.” If you want to be the primary custodian, you must put aside all efforts to undermine your spouse. You must also demonstrate to the Court that you are most likely to ensure that both parents remain in your children’s life.
This might seem counterintuitive given that all of the other factors involve establishing that you are the “superior” choice, but it’s true. Children need the continuing presence of both parents in their lives, and Courts are highly sensitive to which parent is most likely to make sure that happens.
When you meet with your attorney, be prepared to discuss both parents’ relationships and your varying roles with the children. Also be ready to discuss each parent’s relationships with the professionals (pediatricians, therapists, tutors, etc.) treating your children and appointment schedules for these meetings. The best advice for custody decisions is to be honest and informed.
It is not uncommon for parents and their children to have therapists. Many parents pursuing divorce may seek therapy for themselves or their children to help inform the children about divorce, aid with coparenting, and gain support while going through a difficult time period. If there are mental health issues, my best advice during custody disputes is to raise these issues with your attorney. You may also discuss reports and evaluations prepared by professionals at your children’s school, or outside professionals such as psychologists who are treating your children. You should be able to discuss any special needs and learning differences that impact your children.
What about domestic abuse?
Courts are also concerned about domestic violence, particularly when it occurs in the presence of children in the household. Plainly, it is not healthy for children to witness domestic violence against their parent.
Clients sometimes underplay the existence of domestic abuse even after they initiate divorce proceedings, but you need to be honest with your attorney as it may impact custody issues.
Let’s back up a moment and state very clearly at the outset what abuse is. At the most basic level, domestic abuse—also known as “intimate partner violence”—is about the desire of one partner to establish and maintain power and control over another.
Abuse can be psychological, emotional, verbal, physical, sexual, financial—even technological (using tracking devices or manipulating smart home technology to undermine a victim’s sanity). Abusers mix and match tactics from the list above to maintain control over their partners by forcing physical, emotional, and financial dependency and producing a continual fear that prevents their partners from challenging or leaving them.
I encounter abused spouses when they have finally mustered the courage to leave, more often than not because the abuse is so overwhelming that they can’t take it anymore. Before that, they frequently live in terrifying isolation, compounded by despair over being believed, since there are commonly no marks and therefore no evidence. Most significantly, they worry that if they aren’t believed and they end up in court, their children could face significant time alone with the abuser.
How to Get Help
Eventually, my clients will customarily get the orders of protection they need to protect themselves and their children from the abusive spouse. However, they are almost always confronted with questions about why they didn’t go to Court earlier, or why they didn’t report it to the police. They may be questioned about why there are no prior orders of protection to show the Judge, no hospital records, or no records of the abuse at all. When the judge asks me these questions, I have to explain: “Because they were terrified for themselves and their children and, most importantly, too ashamed to speak about the abuse.”
It is important to be honest with your attorney from the outset to get the help you need.
If possible, resolve your divorce without going to Court
With the exception of abuse cases, remember that the best agreements are those you and your spouse reach yourselves (in concert with your attorneys). Going to Court is always a risk as you are handing decisions about your life and your children’s lives over to one individual (the Judge) who doesn’t know you and/or your spouse. Nevertheless, if you are unable to reach an agreement through negotiations, it may be necessary to involve the Court.
Lisa Zeiderman, a managing partner at Miller Zeiderman LLP, a Founding Member of the American Academy of Certified Financial Litigation, a Divorce Financial Analyst, practices in all areas of matrimonial and family law including but not limited to matters involving custody, an equitable distribution of assets, child support and the negotiation and drafting of prenuptial and postnuptial agreements. Once divorced, Lisa is a mom and is remarried. She strategically and creatively crafts each case from the time of the first consultation to its resolution, in order to achieve the client’s ultimate goals.
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