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Child Custody

There is nothing more sacred than issues concerning children. And there is no area of the law that has seen more life-altering changes than the custody and care of our children. There are few times more perilous or decisions more crucial than those encountered when a couple with children break up. The mere question of what will happen to the kids carries with it a thousand unspoken concerns. Whom will they live with? How will they adjust? What will their new lifestyle include? When will they spend time with each parent? What about grandparents and other relatives? How do you minimize the impact of the break up on children?

At common law, fathers were always awarded custody of their children. Then, when families moved into urban environments, courts discovered a maternal preference. By a process of evolution reflecting the changes in social attitudes, the law recognized that applying a formula for children fails to take into consideration the psychological and emotional needs of the children. The standard now is “the best interests of the child.” Neither party has a prima facie right to custody of children in a divorce. If there is no court order, then both parents have equal rights to physical and legal custody of the child.

“Best interests of the child” requires a court to consider what arrangement is likely to provide the most stability for the child, the fitness of the respective parents, the quality of the environment in each parent’s home, the quality of parental guidance each parent is capable of providing, each party’s ability to meet the child’s emotional and intellectual needs and the ability of each parent to foster the child’s relationship with the other parent. Where issues of a party’s mental health are raised, the court has to determine whether the party has adequately addressed any mental health issues and whether or not the issue affects the party’s ability to parent the child.

There are two types of custody of children, legal custody and physical custody.

Legal custody is the right to make major life decisions for a child, such as health, education and religion. If parents agree or are awarded joint legal custody, the parents need to make major decisions about a child together. If a parent has sole legal custody then he or she has the right to make major decisions for the child. Day to day decisions about a child’s life are usually made by the parent with whom the child is at that time.

Joint legal custody is not appropriate where the parents’ relationship is characterized by acrimony and mistrust, where the parties have had disputes about any major issue affecting the child and they have been unable to resolve and/or where either parent has demonstrated an inability or unwillingness to set aside his or her personal feelings for the sake of the child.

Physical custody is where a child puts his or her head on a pillow is based on the best interests of a child. The distance between parties’ residences and the stage and ages of the children can be key factors in a creating a schedule that is best for a child.

Once custody is granted, it is difficult to change it. In order to change custody, the standard utilized is more demanding than the best interests of a child, rather it has to be shown that changing the custody provisions will improve the child’s welfare.

A common reason for a change in custody is relocation. The New York State Court of Appeals, the highest court in the State of New York, in the seminal case of Tropea v. Tropea, 665 N.E.2d 145, dealt with the issue of relocation of a parent and a child. The Court of Appeals set forth the factors that should be considered in determining an application to relocate. As always, the best interests of the child are the key. However, several factors are of particular importance. Each parent’s reason for seeking or opposing the move; the quality of the relationship between the child and the custodial and non-custodial parent; the degree to which the custodial parent’s family life may be enhanced economically, emotionally and educationally by the move; and the feasibility of preserving the relationship between the non-custodial parent and child through suitable visitation arrangements.

Handling a custody situation properly is the most important thing any parent can do for his or her child. As the African proverb says, “If two elephants fight, it is the grass that suffers.” If you really search your soul, think about what truly is best for your child then you can present the best possibilities, either through settlement or litigation to move to the next stage of life. Children have no role in their parents’ decisions to start or end their relationship, they need to be the priority in all decisions.