New York law leaves judges in divorce with wide discretion to determine custody arrangements in children’s best interests.
It is understandable and expected that any parent going through a divorce is going to have major concern about the custody and visitation arrangements for children. The framework set up for a child will determine where and with which parent he or she will primarily live, a time schedule with each parent, how major decisions will be made and who will provide day-to-day care giving, discipline and guidance.
Physical custody determines with which parent the child will live and may be held solely by one of them or shared between them. If the child lives mostly with one parent, the other is likely to be granted visitation rights, also called parenting time. Legal custody, sole or joint, gives the power to make major decisions for the child.
Each parent is likely to have a strong opinion about these matters, whether or not the parents are divorcing amicably, with some tension or as adversaries. Despite the challenges, it can be in everyone's best interest to negotiate a marital settlement agreement that includes provisions for custody and visitation. A difficult negotiation can be handled professionally between the two parents' respective family law attorneys.
If negotiation fails, custody and visitation will be decided at the judge's discretion in the divorce case. New York statute directs the judge in a divorce proceeding to enter necessary orders providing for the custody of any child of the marriage. The judge is to use his or her discretion in discerning what justice requires, considering the family circumstances, the respective parents and the best interests of the child.
Many states' statutes list specific factors that judges must or may weigh in determining what is in children's best interests in custody matters, but New York law leaves the best-interest question largely up to each judge to consider in the particular family situation. Accordingly, New York cases discuss the kinds of factors that typically are relevant to a child's best interest such as:
- Child's age
- Quality of each parental home environment
- Parental fitness
- Parental ability to nurture the child's proper development
- Location of parental homes
- Maintenance of child's relationship with each parent, if in the child's best interest
- Primary caretaking roles
- Parental physical and mental health
- Domestic violence or child abuse
- Work schedules and child care needs
- Child's relationships with siblings and extended family
- Child's preferences, if of sufficient maturity
- And other relevant factors
The law requires that the judge carefully consider evidence of domestic violence, child abuse or child neglect and its impact on the child's best interests in issues of custody and visitation. Severe restrictions are in place concerning custody or visitation when a parent was convicted of murder or sexual offenses, and the court may enter appropriate protective orders.
Military service by either parent is dealt with in great detail by New York custody law, including specific instruction to the judge about the impact of service and deployment.
This is a brief introduction to New York custody and visitation. Any New Yorker facing divorce with children should speak with a knowledgeable divorce lawyer to understand what to expect given the particular family circumstances and for representation in the divorce.
From his office in Brooklyn, family law attorney Curt Arnel of Curt Arnel & Associates represents clients throughout the New York City metro area in divorce, custody and other family law matters.
Keywords: New York, judge, divorce, child custody, best interest, parent, court