If you are going through a divorce with children, one of the most pressing questions you will likely have is how to win child custody. The breakup of a family relationship is a stressful life event and a conflict over parenting only intensifies the anxiety that most parents experience. However, reviewing the process of a custody evaluation with a child custody lawyer can help ease your fears while allowing you to be better prepared.
Types of child custody available
In New York and New Jersey, child custody is broken into two parts: legal custody and physical (or residential) custody. Legal custody is the right to make major decisions for the child, whether or not the child resides with that parent. Meanwhile, the parent with whom the child lives has physical custody.
When one parent has both legal and physical custody, it is referred to as “sole custody” – this is extremely rare. In recent decades, courts have formally recognized that children are often best-served when they have a meaningful relationship with each parent so they do not award sole custody absent very serious circumstances.
In a typical case, one parent will have primary residential custody while the other parent has the right to parenting time. Both parents will share legal custody. What they need to decide in a divorce or custody action is who will be the residential parent, when and how parenting time will take place, and often special decisions like the activities in which the child make take part, how medical issues may be handled, or when and how non-local travel will be permitted.
How child custody is determined
Ideally, the parties agree on child custody terms. In an amicable split, they may start with the court’s preferred parenting time guidelines and then make adjustments to suit their child’s needs or craft an entirely new arrangement that makes sense for their family. Even in these relatively smooth cases, it is smart to consult a New York or New Jersey child custody lawyer before finalizing the terms because the custody agreement will need to be approved by a judge and then it will become a binding court order.
In less than amicable splits, the parties may need to go to court, present evidence, and let the judge determine how parenting time will be awarded.
Which parent will be granted child custody?
A common assumption is that the mother will always be granted child custody of young children while the father will be expected to pay child support and have periodic visits. In bygone days, this was the typical outcome under what is known as the Tender Years Doctrine. Today, courts in New York and New Jersey, as well every other state in the nation, have abandoned the doctrine in favor of a “best interests of the child” analysis.
Courts look at many factors to determine the best interests of the child. These commonly include the fitness of each parent and his or her ability to support the child’s relationship with the other parent; special needs of the child; each parent’s employment situation; a parent’s dependence on drugs or alcohol; the presence of a domestic partner living in the home; and other factors that the court deems relevant.
Preparing for a custody hearing
Going to court to win custody can be intimidating, to say the least. It is important to be prepared with admissible evidence that demonstrates your ability and your ex’s ability to support the best interests of the child. You must also be prepared to present it in a way that complies with court procedure. This is a big undertaking; many parents represent themselves in these proceedings but working with an experienced child custody lawyer will help protect your immediate and long-term parental rights.
Your attorney can help you by:
- Explaining what factors courts in your jurisdiction view as substantial when making a “best interests of the child” determination
- Gathering and presenting evidence supports your case
- Guiding you through the court procedures, including compliance with local rules
- Negotiating an agreement with the other party
Once your custody order is in place, it will be fully enforceable by the court. This means if you have second thoughts about the terms and begin to deviate from them, you could be found in contempt. It also means you may need to seek court enforcement if your ex decides not to honor the terms.
The order will remain in effect until your child reaches adulthood or you go through a modification process. Given all that is at stake, take the time to protect your rights at the beginning by speaking with a child custody lawyer at Kantrowitz, Goldhamer & Graifman today.