Child Custody Is A Parent's Right

In New York, courts have broad authority to decide custody matters and set visitation schedules. Their chief aim is to serve the best interests of the child, and in this aim the courts are gender-blind — mothers and fathers have equal rights to custody. The predominant consideration is which parent serves as the primary caretaker — that is, who is more involved in the child's day-to-day activities. To this end, a number of factors come into play. The courts consider who:

  • Feeds the child
  • Helps ready the child for school
  • Communicates with the child's teachers
  • Helps the child with homework
  • Arranges extracurricular and social activities
  • Arranges doctors appointments
  • Sees to the child's necessities with regard to clothing and housing

Such determinations are at least in part subjective, and it is essential to hire an attorney who knows how to convey the importance of your bond with your child. The Law Offices of David Bliven can assist. Serving Westchester (including White Plains) and the Bronx (including Riverdale), we have 20 years of experience asserting the rights of parents in court.

Your Parental Relationship Is In Your Child's Best Interest

Legal custody carries many privileges. The custodial parent has authority, for example, over the child's schooling, health care and religious upbringing. As such, the custodial parent plays a fundamental role in the child's physical and intellectual development, while the noncustodial parent often feels sidelined.

Certain behaviors and conditions — such as substance abuse, mental illness, or a history of violence or neglect — compromise a parent's ability to obtain custody. Barring these, however, a parent should face no undue obstacles. Our firm will work rigorously to make sure your parenting rights are protected.

What factors are considered in a chid custody determination?

The overall standard is the "best interests of the child." Within that standard, the court considers "the totality of the circumstances." That said , there are a number of other specific factors that the court considers when awarding custody when dealing with two biological parents.

The Judge will generally consider the stability of the child's current arrangement, each parent's home environment and financial ability to meet the child's needs, any arrangements to care for the child when the parent is unavailable, who has been the primary caretaker for the child in the years (or months) leading up to the custody filing, any drug/alcohol use by either parent, the mental & physical health of the parties, adverse sexual misconduct of either parent, domestic violence, as well as the child's preferences.

The court will also assess each parent's willingness to foster a relationship between the other parent and the child, any denial of access to the child, as well as any abuse or neglect of the child. Finally, the Judge will assess the parties conduct as the case is proceeding, including conduct both in and out of the courtroom.

We still live together - how is child custody handled?

One way to resolve the issue is for the parties to agree on which parent may have custody, and then allow him/her to move out with the children while the case is pending. It's best that each party have a lawyer and an interim stipulation be drawn up to this effect.

If there's no agreement, then neither parent should move out just yet. Instead, if there's either domestic violence present or same is imminent, then an application for exclusive occupancy and temporary custody should be filed. If that's not the case, then you will then just need to go through the process of a contested custody case. You should both have lawyers who have good experience handling such cases. Generally the Court will also assign an Attorney to represent the children - and generally will order (though not always) a forensic psychological evaluation on the custody issue.

How to Prepare for a Custody Battle if Still Living Together

No matter how tense the situation may be around the house, one should generally NOT move out of the house & leave the kids with the other parent. This will automatically put you behind the 8-ball in winning custody.

Additionally, if you haven't been already, take an active part in EVERYTHING the children are involved in. Make sure his/her teachers, doctors, extracurricular activity instructors, etc. know you by your first name.

If you presently work long hours, cut it out immediately. Spend the extra time with your kids. Take them fun places & buy them nice gifts (though caution must used not to over-do it as it otherwise would look like you're trying the bribe them).

Keep a written diary of any important conversations or interactions with the other parent (a "he-said-she-said" log). Refrain from posting negative content about the other parent on social media as this is potentially discoverable - if you have something to say to a friend/family member, say it in person. Refrain from cursing or denigrating the other parent, especially in writing (I don't know how many cases I have in which one side curses or denigrates the other via text and/or e-mail).

What are the Different Types of Child Custody in New York?

In New York, custody can be determined in a number of ways:

  1. JOINT CUSTODY: In a joint custody situation, both parents have the legal authority to make major life decisions on behalf of their child concerning issues like religion, education or health care. Sometimes they agree to have "equal decision-making" which means they must reach agreement on all major decisions, or else the decision would be submitted to a mediator or Judge to decide. In other agreements, the primary custodial parent gets final decision-making after full consultation with the non-custodial parent. Joint Custody in New York is often reached via agreement but rarely imposed upon the parents by the Judge.
  2. SOLE CUSTODY: When a parent is given sole custody, the child will physically live with him or her, and he or she will have the ultimate authority to make everyday and major life decisions for the child.
  3. SHARED CUSTODY: When parents share custody, they generally split their access to the child 50/50. A shared custody situation is very rare.
  4. SPLIT CUSTODY: This is a situation in which at least 1 child lives with one parent, and at least 1 child lives with the other parent. Negotiating a custody plan can be complex. It is important to remember that the court ultimately looks at what is in the best interests of the child. For fathers, this means that if you and your child's mother separate, it is important to remain in the child's life as much as possible. Both parents -- custodial or noncustodial -- should keep as much physical evidence as possible that may strengthen their case.

Should I give Custody of my kids to their father?

There are many situations in which a mother has voluntarily given custody of her children over to the father. Many times this happens because the mother wants to go back to school to obtain a degree, or because the mother's house is cramped & the father just moved into a new, larger space.

Regardless, the mother feels in doing so that the arrangement will just be "temporary." Sometimes the father even expressly states, "I won't give you any problems in giving you back the kids when you finish school."

If only everything were just that simple. When a Child Custody lawyer must get involved, it's because the situation has changed, but now the father will not give the kids back. The mother has no proof of their informal arrangement and therefore must satisfy a high legal burden in order to get an order from a Judge switching custody. What to do?

First, mothers in this situation should get the temporary nature of the arrangement captured in writing, preferably in a custody order which provides that mother may petition for custody again when her circumstances change (while stating in the order itself what exact circumstances may create the change).

Second, it's preferable to have the father sign a notarized letter, affidavit or stipulation stating his intentions of giving the children back upon, for example, mother finishing school.  Ideally, a formal parenting agreement would be executed to this effect.

Finally, any conversations of significance between father & mother should be captured in writing, which usually takes the form of a confirmatory e-mail.

While these steps won't guarantee a mother gets custody back, they'll put her in a much better position that doing nothing at all & assuming "everything will fall into place."

How is child support calculated when parents share custody?

Some people share custody of their child - which means exactly 50%-50% in each household. The issue then becomes whether child support is paid at all - and if so, how much.

The first analysis is whether the shared custody arrangement is pursuant to court order, or just by a mutual, informal agreement. If it's pursuant to court order, then you can skip to the next paragraph. If it's pursuant to informal agreement, then you're best advised to start keeping track of the days (& even hours of those days) the child is with you. Reason being: if there's a dispute later on about whether you do indeed shared custody, then at least you have something in writing to corroborate same. You should also begin confirming the days you'll have the child with the other parent in writing. As an example, you can send a calendar to the other parent for the next month marking off "M" or "F" on the days to designate which days the child will be with you versus the other parent. In the end, you're best advised to file a petition for shared custody & get the arrangement confirmed via court order.

The prevailing law - however incorrect - holds that in a shared custody situation the parent who makes more is automatically deemed the noncustodial parent & is thus potentially liable for the full guidelines amount (i.e., 17% for 1 child, 25% for 2, etc.). That said, many courts deviate from the presumptive calculation in a shared custody situation & do an off-set: first, then calculate support as if the father is paying the mother support. Then they calculate as if the mother pays the father support. The difference between the two calculations would therefore be the only money changing hands.

Legal Support When You Need It Most

If you would like to speak with a lawyer, contact the Law Offices of David Bliven. We provide free initial assessments and can set up full consultations as needed. To get in touch, call us at 914-368-7580 or reach us online.