Ask a New York Divorce Lawyer: How Does One Parent Win Custody in Court?

If you need legal assistance with your divorce, we are here to help. Hiring a skilled divorce lawyer early on is the best way to make sure that your case will have the most successful outcome given your particular situation. Our skilled team of experienced divorce lawyers is available to answer your questions. With hundreds of successful case outcomes, we will work hard to ensure that your parental rights are protected.

As a parent, the wellbeing of your children is probably very important to you. When you're going through a messy divorce, imagining the other parent getting custody may seem like too much to handle. Rest assured, you aren't alone in these feelings. Many parents feel that their spouse should not be allowed to have custody of the kids and would prefer to have sole custody themselves. In other cases, one parent is afraid that the other parent will win custody and leave them out in the cold. In this comprehensive blog, we will talk about how custody works in New York, what factors are considered by the courts when deciding on custody arrangements, and much more.

Remember, only an experienced divorce attorney will be able to answer your questions as they relate directly to your unique case. With custody cases, a family law attorney with over twenty years of experience, like the ones at our firm, will be able to walk you through your case from start to finish. Please call our office at your earliest convenience to schedule a free consultation with one of the highly reviewed divorce lawyers on our team. In the meantime, we hope that this guide can help clear up some of your questions.  

All About Child Custody Laws in New York

Custody of children will involve both their physical residence and the legal right to make decisions on their behalf. However, before we can get into how custody is awarded in New York, it's important to first go over a few basic terms and legal concepts in regards to child custody and visitation.

Custody of children is broken up into two sub-categories.  The first is Legal Custody and the second is Residential (Physical) Custody:

• Legal Custody

Legal custody involves the parents’ decision-making powers and authority. Parents with legal custody will have the final say in decisions about the minor child or children. These decisions may involve things like educational, religious, or medical issues. Usually, one parent will have the final decision-making authority about these issues.

• Residential (Physical) Custody

The parent with residential (physical) custody will be the parent with whom the child or children reside. Usually, the “non-custodial” parent will have a parenting time alternating weekends, midweek time with the children as well as holidays and vacation periods shared with the other parent. 

There are three basic forms of custody a parent must consider when getting divorced or separated from their spouse:

• True Joint Custody

True Joint custody is not that common.  With true joint custody, both parents will share legal custody (authority to make final decisions regarding the care and welfare of the children).  They also will share residential (physical) custody of the children meaning where they will reside.  This arrangement is usually only successful with spouses who have good communication skills with each other, are sympathetic and considerate to the other’s needs and of course are willing to work together and compromise for the benefit of the children.  In most circumstances, if the spouses could do all that they probably wouldn’t be getting divorced in the first place! Also, courts are reluctant to order true joint custody over the objection of one party.  This is primarily because courts understand that if the parties cannot even agree on the form of custody, how will they be able to work together and logistically handle all that true joint custody requires of them?

• Sole Custody

Sole custody is the opposite end of the spectrum from true joint custody.  Sole custody is when one parent has both legal and residential custody of the children. What that means is that one parent has the final decision-making authority and also is the parent with whom the children shall primarily reside.  It is important to remember that just because someone is granted sole custody does not mean the other parent has no protection.  In fact, the “non-custodial” parent can challenge any decision the sole custodial parent makes if they believe the decision is not in the children’s best interest. The most prudent course is for the sole custodial parent to inform and include the other parent in the decision-making process.  If there is an impasse then the sole custodial parent will have the legal right to make the final decision but that decision is always subject to a court challenge by the other parent.

•  “The Hybrid” – Joint Legal With Residential Custody to One Parent

“The Hybrid” form of custody is one of the most common forms of custody arrangements in New York.  In this situation one parent serves as the parent with whom the children primarily live and both parents share equal authority in decision making for the children.  There are any number of ways to coordinate such joint decision-making authority.  A good New York divorce attorney will be able to advise as you as to the best way to logistically coordinate such decisions given your family’s particular circumstances.

Child Custody Laws Have Changed Over The Years

As the world progresses and moves forward, so do our laws. This is why it's a good idea to hire an experienced lawyer. The advice that you may be getting from friends and family is often dated or inaccurate. In some cases a close friend or family member has gone through a divorce and has the best of intentions when advising you.  The danger here is there are so many variables that can affect the outcome and one’s overall experience with the divorce process.  Some of these are the attorneys involved on both sides, the judge assigned to the case, the particular circumstances existing in their family at the time, and much more.  For example, one common misconception is that mothers will always get custody of minor children. This is a dated idea. Child custody cases are now decided on a case by case basis. In fact, the law now states that there is no presumption of custody based on the gender of the parents.  Both parents come to the court with equal rights and only facts like who the primary caregiver was historically, the work schedule of the parties, ages of the children and more will be used by the courts to make a decision on custody.  This will be discussed in more detail later on.

Any Couple With Children Can Have Custodial Orders

It should be noted that people do not need to file for divorce to have the issue of custody decided.  They don’t even need to be married.  Unwed couples often have custodial disputes as well. You don't have to have been married to have a custody agreement drawn up or to file a petition in New York Family Court seeking custody of your children. All you have to do is have a child with someone else. Seeking the advice of a good family law and divorce attorney will be critical in making sure your rights are protected and that you are prepared to fight for what you believe is in the best interests of your children.

Keep in mind that divorce lawyers and family law attorneys are often familiar with these kinds of cases. At our firm, we offer lawyers with expertise in family law and divorce. So, even if you've never been married, we can assist you with your child custody case.

New York Custody and Best Interest Laws

Under New York law, certain factors are considered when the parties cannot agree on a custody arrangement and the court is asked to decide which parent to grant custody to, and what type of custody to grant them. The way this is decided will involve many varying facts and circumstances. Ultimately, what is in the best interests of the child or minor children is the most important factor considered by the courts of New York. But what does this mean? Well, that's what we will go over in detail in the next section. First, here are some of the factors taken into account by the New York courts when determining what is in the best interests of children.

Factors New York Courts May Consider When Determining Custody:

• If one parent has been the primary caregiver for most of the marriage or most recently.

• How long the children have been living with either parent.

• Where the primary residence of the children is.

• Any special needs that the children may have, and which parent is best equipped to handle those needs.

• If any domestic violence has occurred within the family.

• How many, if any, siblings a child or children have, and where they will reside.

• Whether or not one parent is better equipped than the other to handle the emotional and intellectual needs of a child or children.

• If the parents can work on maintaining a civil relationship with each other.

• If either parent has been openly hostile toward the other parent, alienating children from their partner, or similar behavior.

• Sometimes, if children who are old enough have a preference for where they would prefer to live, this will be taken into consideration – but remember it is not simply enough for the child to want to live with one parent, the other factors will be considered.

• Whether either parent has had or currently has issues with alcohol or drug addiction.

• Which parent will most easily be able to provide for the children. This can include things like care, shelter, stability, food, medical attention, and education.

• The overall home environment of either parent.

• If there is already a strong bond between the child and one of the parents, but not the other parent.

• Whether there is an informal agreement or custody order already in place.

• The ability of parents to earn an income.

• The work schedule of both parents.

• The absence of domestic partners in either parent's household.

• The overall mental and physical health and stability of the parents.

While there is no set age where a child's opinion on which parent they want to live with is considered, the court will grant more weight to the opinion of a 16 year-old child over one of a 7 year-old. Additionally, children are not always allowed to give their opinions. Your lawyer will be able to elaborate on how the wishes of your children will be considered in your unique case.

It's also important to note that while all of the above-listed factors count toward custody in some capacity, the court will ultimately usually consider the totality of the combined circumstances. This means that a court will consider all of the above factors and any other factors that are relevant when deciding which parent will be awarded which custodial rights.

One single factor will rarely determine the best interests in New York. The only very strong singular factor that is often considered in the state involves if a child has already been living with one parent consistently for a set amount of time.

The Attorney For The Child (Formerly known as the Law Guardian)

Often in custody battles the court will assign an attorney for the children.  This attorney is a trained family law attorney whose sole job is to advocate on behalf of the children.  They will meet with each parent independently, meet with the children and also inspect the residences of each parent if they are living apart and will then report back to the court their findings and opinions as to what their clients (the children) desire and what is in their best interests.  It is important to note that the courts will give a fair amount of a deference to the findings of the attorney for the child as they do not advocate for anyone other than the children.  Hiring a good New York divorce and family law attorney is critical in making sure that the attorney for the child is well informed as to the reasons why your opinion on how custody should be awarded is in the best interests of the children and therefore should also be the attorney for the child’s opinion as well.

The Forensic Psychologist

There are times when the individual facts and recommendations of an attorney for the child is not enough.  If there are allegations that the relationships are strained or dysfunctional, or that one of the parents suffers from a diagnosable problem, a forensic psychologist may be appointed by the court to examine the parents and the children to determine if there is a mental health component to consider.  Things can, and often do, get very emotional if the custody battle starts involving psychological evaluations as core feelings and issues bubble to the surface.  It is important to hire a knowledgeable family law and divorce attorney who can guide you through this emotional process.

How Can I Prove That I Am The Better Parent?

This is a question that attorneys often get asked by frustrated parents in the early stages of their respective cases. It's important to understand that the motivation behind proving that you are the better parent is often tied to the desire to be awarded sole custody. After all, if you are the better parent, the court should give you sole custody, right?

The thing is the courts in New York will only give sole custody to one parent over the other is they have very good reasons to do so. It is important to remember that sole custody doesn’t mean one parent is no longer part of the children’s lives.  Even when one parent does have sole legal custody or primary physical custody parenting time (or visitation) is always granted the other parent barring some danger to the children. It is very difficult for one parent to lose contact completely with their children. Even when parents are deemed unfit, supervised visits are usually allowed. So, if you are trying to make your ex-partner simply go away forever, you're going to need a very good reason and most importantly you will need to clearly articulate why such an extreme request is in the best interests of the children. This is definitely something you should discuss with your attorney.

If you are indeed the most fit parent, it might take the court time to see that absent any egregious behavior. There is a process that involves setting up a custody agreement, following it, and proving you are the best parent. If the other parent is constantly violating the legal agreement they can slowly lose certain custodial rights. But this can be a long process because courts do not like to restrict parental access to children except in the most extreme circumstances.

Parenting styles and living arrangements may also play a large role in showing the court that you are the proper parent to whom custody should be awarded. Your residence must be a safe and fit place for children to live if you are fighting for custody. You'll also want to show that you are a responsible and loving parent. Following the court’s orders regarding parenting agreements and visitation schedules is important as well. Adhering to these orders shows that you are willing to work with the other parent for the best interests of the children. This counts in the eyes of the Court. Additionally, any parent who is given primary custody has the responsibility to foster the relationship the children have with the non-custodial parent.  As such actively working to make sure the children see and speak to the other parent regularly and that you inform the other parent of all the children’s school events, extracurricular activities and schedule shows your fitness for primary custody. 

• You Have to Show That You Have The Best Interests of Your Children at Heart

So, the goal isn’t simply to show that you are the better parent, but to show that you are willing to do whatever it takes for your kids. Even if that means making peace with your soon-to-be-ex. Coming off as aggressive in court is rarely the best approach. Even if your soon-to-be-ex is horrible, you have to prove this, or you may just seem irrational and emotional in court. This is one big reason why it is very important to have a lawyer protecting your rights in court! You can emotionally explain your situation to your attorney, then they will translate your story into something a judge will listen to and take into account.

• Having an Experienced Attorney on Your Side Can Help You Enormously

With this being said, nothing is going to be one-size-fits-all solution in court. That's another reason that having a quality family and divorce attorney on your side is so important. For example, in some cases, you may truly be in danger of the other parent’s belligerent and toxic behavior. There are legal precautions that you can take to ensure that you will be protected in and out of court.

In other situations, a custody agreement has been made, but one parent constantly violates it. This is an area where a good family law and divorce attorney will be able to help you make progress filing a violation petition and working to negotiate a new custody and visitation agreement or petitioning the court to modify the existing one.

If you are going through a divorce, your attorney will also be able to help you with things like visitation, child support, and more. If you're fighting for the custody of your children and trying to protect your assets, your divorce lawyer can also help you with a valuation of assets if you need one. Your attorney will also be able to answer questions about spousal maintenance (alimony), equitable distribution, your marital residence, and more.

That's why having a quality divorce and family law attorney on your side is so critical. They can help you with all of this and more.

Hire a Top Divorce Lawyer or Family Law Attorney

Have you been considering getting a divorce in New York? Whether on Long Island, the five boroughs, Westchester, Rockland or Orange Counties we recommend hiring a skilled divorce and family law attorney from our firm. This is the best first step you can take to ensure that your case will be resolved effectively. Our legal staff has attorneys with over two decades of experience handling divorce and family law cases of all kinds. We can help you decide on the proper course of legal action for your situation. With some of the best-reviewed divorce lawyers and hundreds of successful case outcomes, our firm is here to help you with all your divorce-related and family law matters.

Choose The Best Reviewed Custody Lawyer for Your Case

If you wish to inquire about family and divorce law topics like custody, financial division, child support, or anything else, we are here to help. Please feel free to call and schedule an appointment for a free consultation with a New York divorce lawyer from our firm. Contactless consultations are available by video conference or phone.  We will assign the best lawyer with the answers you need. We're here to help move your case in the right direction, no matter what stage it's at.