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Decades Of Litigation Experience

CUSTODY OVERVIEW

| Jan 29, 2021 | Family Law |

New York courts use the best interest of the child standard in determining which parent will obtain custody. This standard involves the analysis of several factors, including a parent’s involvement or presence in the child’s life; the age of the parents; any physical or mental impairments that a parent suffers from; and the finances of each parent; among other factors.           

When one contests custody in a proceeding, they place their mental and physical well-being at issue. As a result, the normal rules of confidentiality between doctor and patient may be suspended to a certain extent, and a court may order that a parent disclose certain aspects of their mental health treatment history, for example. While a balance must be struck and unnecessary disclosures need not be made, parents can expect that a potentially intensive investigation into their backgrounds will be conducted in determining custody. Furthermore, the court may appoint what is known as a forensic evaluator to examine the mental state of each parent. This evaluation will be used by the court to help determine what is in the best interests of the children.

There are two types of custody—residential and legal custody. Residential custody refers to the parent with whom the child will reside and who will make day to day decision regarding the child. Legal custody refers to a parent’s right to have control over the major decisions in a child’s life, such as their educational or religious upbringing or extracurricular activities. Notably, a court can decide that the parents will equally share both residential and legal custody.

Ultimately, determining what is in the best interests of the child in a custody proceeding is a broad question. Courts will consider the totality of the circumstances to determine custody. The revelation of confidential information regarding a parent may be necessary for the court to conduct this analysis. If there has been a substantial change in parents’ circumstances since the last custody determination, one can petition the court to modify the prior order. Furthermore, if you and your spouse can come to an agreement regarding custody that satisfies both of your desires, then this can greatly reduce the time spent in these proceedings and the legal costs each parent will incur.