Child Custody

At Choudhry &Franzoni law firm, we understand that child custody and timesharing arrangements are emotionally and mentally draining yet they are essential to the emotional health of each of the children involved in a divorce. Our lawyers are parents too and understand the emotional toll that all parties involved in a divorce action face. We understand the difficulty a child faces including the transition from one home into two homes, the different schedules of each parent, and the needs of the child. When it’s your child’s future on the line, you need to be confident that you are going above and beyond to ensure that the best possible resolution is reached.

As a father going through the divorce process, you may be concerned as to whether your rights will be protected and how the child custody case will result. If you are a mother filing for divorce, you may have concerns regarding the custody of your children and spousal support payments you may be entitled to if granted custody by a family court. In either case, you will need an attorney who is qualified in child custody law on your side to deal with these matters.

A New York court can make orders about the child’s custody only until the child is 18 years old. The Court gives custody based on what is best for the child; this is called the “best interest of the child.” If there is no court order, then both parents have equal rights to physical and legal custody of the child. Parents should also keep in mind that according to the New York Domestic Relations Law, “In all cases there shall be no prima facie right to the custody of the child in either parent.” This means that neither parent in New York State is presumed to have a right to custody. The court will not, for instance, award full custody to an unfit parent merely because the other parent would be an even worse alternative. The court is not required to place a child with the lesser of two evils.

CHILD CUSTODY ORDER

A Custody Order gives responsibility for the child’s care and how the child is brought up to one or both of the child’s parents or to someone else. While there is no statutory distinction between physical and legal custody, understanding these concepts is the first step in understanding a custody proceeding.

PHYSICAL CUSTODY refers to residential custody and the custodial parent is responsible for the actual physical care and supervision of a child.  If a Judge gives joint physical custody, the child lives with each parent for an equal amount of time.  If the Judge gives sole physical custody, the child lives with the custodial parent more than 50% of the time and the noncustodial parent has visitation.

LEGAL CUSTODY refers to which parent has the legal authority to make decisions involving the child. The three most significant issues involving legal custody are religious, educational and medical decisions. An order of custody is always subject to an order of visitation for the non custodial parent. New York is slowly moving in that direction, however, no matter what term is used the underlying concepts remain the same.

JOINT VERSUS SOLE CUSTODY

Joint custody was recognized by the Court of Appeals in Braiman v. Braiman, 44 N.Y.2d 584 (Court of Appeals, 1978). Joint custody means joint legal custody, and not how much time the child spends with each parent. Joint custody gives both parents equal decision making authority. Joint custody will allow both parents an equal role in rearing their children, provided both parents can work together to make joint decisions.

However, equal authority also means that each parent has an absolute veto over the decisions of the other parent, meaning that complete deadlock on decisions involving the child will result if a mutual agreement cannot be reached. For this reason, courts in New York have held that joint custody is appropriate on consent of both parties, but is rarely awarded after a contested hearing. Joint custody may not be sole custody in disguise. In Williams v. Boger 33 A.D.3d 1091, (3rd Dept. 2006), the Appellate Court, on its own initiative, struck a provision from a joint custody order that granted the petition the final say in the even a mutual agreement could not be reached.

PENDENTE LITE OR TEMPORARY CUSTODY

Pendente lite or temporary custody is a custody order issued by the court once the case has been filed but before trial. Pendente lite custody may be requested in a pendente lite motion. Pendente lite means “pending the trial” and this term is usually used in Supreme Court, while temporary custody is usually used in Family Court. At the conclusion of the case, any pre-trial temporary orders are vacated, and a final order is issued

BEST INTEREST OF THE CHILD

The New York State Domestic Relations Law states that there is no prima facie right to custody of a child in either parent. Case law has established that the factors to be considered by a court in awarding custody include the quality of the home environment and the parental guidance provided by each parent. Of equal importance is the ability of each parent to effectively provide for the child’s emotional and intellectual development.

A New York court can make orders about the child’s custody only until the child is 18 years old.  In New York, if a couple cannot decide child custody matters, courts give custody based on what’s in the “Best Interest Of The Child”.