The custody portion of your divorce case will be determined based on what the court finds to be in the best interests of the child. "Best interests" is a broad, all-encompassing term. There are a variety of factors the court may consider, and many more it is likely to consider. Your attorney will create a complex best interests argument to show the court that your position is the one that will benefit the child the most.
Domestic violence is one factor a New York court must consider in every single custody case. The court must consider any domestic violence that has occurred by either parent against the other parent or against any family or household member of either party, as long as a preponderance of the evidence proves it. Any existing orders of protection must be considered, and any allegations of domestic violence also must be considered if they are proven.
The point of this analysis is to examine the impact of domestic violence upon the child and use that consideration to weigh how custody should be determined. Be aware that even if there has been no domestic violence in your household, an allegation by your spouse about this will trigger the court's consideration of this factor.
Child abuse is another factor the court must include in its deliberations. If any allegation of child abuse is made and proven by a preponderance of the evidence, the court must consider it and cannot place the child with a parent who creates a substantial risk of harm. Additionally, child abuse must be factored in when forming a visitation plan. Just as with domestic violence, even if you have never harmed your child, an allegation about this can complicate your custody case and trigger an inquiry by the court into it.
Facts and Circumstances
The rest of the custody analysis is in the court's hands with discretion to consider facts and circumstances that are relevant and important in the case. There is no exact checklist a court must tick off in making a decision, but there are common things the judge will look for:
- Stability Courts are interested in providing a stable, consistent home for the child. Because of this, whichever parent is awarded temporary custody has a stronger chance of prevailing when it comes to permanent custody. Courts look for a compelling reason to disrupt the existing situation and move a child out of one home into the other home. Because of this, when your attorney goes to court to argue for temporary custody, the stakes are high, and a hearing for temporary custody has a significant impact on your entire case.
- Caretaking History Also, in the interest of promoting stability, courts are more likely to award custody to the parent who has been the primary caretaker for the child before the divorce. The parent who managed homework, transported the child to activities, communicated with the school, managed the nanny, and was present in the home the most with the child gets an advantage. If you are the parent who was not as engaged in caretaking, presenting a complete picture of your involvement is important.
- Child Care When both parents work or are occupied with philanthropic pursuits, child care is a relevant item of inquiry. The parent with better child care arrangements has an edge. Thus, it is also crucial to take "custody" (i.e., hire for yourself) of the nanny so that you can continue to employ the children's familiar caretaker.
- Work Schedules The parents' work schedules (and social schedules) are considered to determine who has more time available to spend with the child. Parents are not penalized for working, but a parent who has more time for the child is regarded favorably.
- Interference with Visitation When one parent purposely interferes with the other parent's relationship with the child and refuses to honor visitation or deliberately regularly cancels it, this is considered by the court and can warrant a complete change in custody if it is extreme.
- Health of the Parents A significant illness or disability that impacts a parent's ability to care for the child is weighed by the court. Similarly, untreated mental illnesses, personality disorders, or unstable behavior that create concerns about a person's parenting abilities is a consideration in the custody determination. The keyword here is 'untreated.' A parent who receives treatment and can manage a mental illness is not penalized unless the mental illness negatively impacts their parenting.
- Substance Abuse The court will weigh evidence that a parent has a drug or alcohol abuse problem in making its decision. An untreated or unmanaged abuse problem is of serious concern because it places the child in danger.
- Financial Health The court considers which parent is better able to provide for the child financially. In high net worth divorce cases this is rarely an issue, except in situations where a parent is severely impaired by a mental illness or a substance abuse problem and cannot responsibly maintain a home and a reasonable standard of living.
- Parents' Behavior Not surprisingly, the court will take into account the way the parents behave in the courtroom when making a custody order. Another consideration is which parent is most likely to promote a relationship between the child and the other parent. A parent who is constantly on the attack and is uninterested in maintaining the connection between the child and the other parent is less likely to be awarded custody.
- Conditions in the Home The home where the child will primarily lives must be a safe environment, and thus the court is concerned about potential dangers that may be present in each parents' home. These include not only environmental factors (such as a cliff with no fence) but human factors, such as new partners who have substance abuse problems or abuse the child, or frequent parties that create a perilous environment for a child.
- Siblings Maintaining close sibling relationships is something judges are committed to. If your child has siblings, it is improbable the court will split custody of them so that they will no longer reside together. Half-siblings are also important and are considered when determining custody and visitation to maximize contact and preserve the relationship.
- Educational Opportunities The educational opportunities each parent can offer the child are significant considerations; however, in a high net worth family, this can be compensated for via the child support arrangement. It is important, however, that a parent shows an interest in obtaining a quality education for the child and having a plan for the child's schooling. Additionally, if a child is not thriving at school in the current custody arrangement, this can be the impetus to change custody.
- Child's Opinion The child's preference concerning custody is taken into account by the court, but the weight of that opinion increases the closer the child is to age 18. The request of an eight-year-old is not appraised at the same level as that of a 16-year-old. The court does not blindly accept a child's request, however. The reason for the preference is important. For example, a teenager might prefer to live with a parent who is largely absent and does not enforce rules as much as the other parent. The overriding concern for the court’s evaluation is always ensuring the best interest for the child.
Custody cases are complex and intricate. Your divorce attorney should present a detailed, multilayered argument for your position and may bring in experts such as custody evaluators and child psychologists to bolster your case.