A discussion of child custody must be held during the divorce negotiations. In the best case scenario, parents can amicably agree on child custody and this can then be added into the divorce decree with the agreement of both parties. If no agreement can be made, a custody trial will be held through the Family Court or as part of the divorce action.
However, as not all divorces are amicable, it may be necessary to hire a private investigator in New York. This is especially true if you are concerned about your child’s safety, doubt the other parent’s ability to care for the child, or if there are accusations of abuse or neglect. A private investigator is able to find legally acceptable evidence and testimony, especially in stressful and high tension situations like a divorce. They can help you prove or disprove their parenting ability or they can clear up any false accusations. Just as any court case, a private investigator’s evidence and testimony can be pivotal in a child custody trial.
If you are going to go through a custody trial, here’s a quick overview on New York’s Child Custody Laws:
Legal and Physical Custody
When discussing custody there are two parts: Legal and Physical.
- Legal custody refers to the parent’s ability to make important decisions for the child. These decisions include religion, education, and medical care. In the event that there is joint custody, both parents must discuss the decision.
- Physical custody refers to which parent the child lives with. This is often a 50/50 split between the parents or somewhere close to it. It is also possible that the child lives with one parent during the week while the other parent looks after the child on the weekends. The parent with whom the child spends more than 50% of their time with is considered the custodial parent and the other parent is non-custodial.
Sole and Joint Custody
Joint custody is when both parents share in the part of custody – this can be joint legal custody or joint physical custody.
When a parent has one part of custody, legal or physical, then that parent has sole custody. In sole legal custody – the custodial parent does not need to discuss the educational decision made for a child with the non-custodial parent. In sole physical custody, the non-custodial parent may have no time or often, very little time with the child.
Shared Custody and Child Support
In the event that it’s not possible to determine which parent spends less than 50% of the physical custodial time with the child, the parent who earns more is considered non-custodial and will pay the child support. The custodial parent cannot refuse visitation for the non-custodial parent in case of non-payment of child support.
It is possible for parents to come to a contractual agreement that the child support payment to each other is waived.
What Factors Affect a Child Custody Decision?
While the State of New York would prefer joint custody to lessen the impact of the divorce on the child, the judges try to make decisions based on “best interest of the child”. While there are no hard guidelines, they are generally understood to be:
- Evidence of the parent’s ability to meet the child’s physical and emotional needs. While having a stable employment can help a parent gain custody, they must also be able to show that they are able to give the child a genuinely loving and caring home.
- The parent’s mental and physical health.
- Any history of domestic or substance abuse.
- The parent who has been the primary caregiver thus far and has a closer emotional relationship with the child.
- The child’s wishes, depending on age. The wishes of a child 12 years or older will have more weight than a younger child.
When Is Child Custody Decided
If there is no voluntary agreement between the parents, a child custody trial will be held after a custody petition is filed with the Family Court or as part of the divorce action. However, before a final order is made, a temporary order of custody may be issued.
It is quite possible that a temporary order can become a permanent order if there are no issues encountered. If a temporary order is unacceptable, it is important to dispute it to increase the possibility of preventing it from becoming permanent.
