Child Custody 101- A Primer in New York Child Custody Law

Basic Child Custody Issues

Child Custody cases are bitterly fought but least understand by the parents. You need to know the facts before stating a fight for your child.

People mistaken believe that the mother always wins in a custody battle over the children. This is no longer the case. The courts no longer apply the old rule that the mother will always win child custody. The test used is based upon the best interests of the child. Often, the parent who is the primary care-giver will get custody of the child. Generally, the non-working spouse is the primary care-giver.

This does not mean that the non-working spouse will always get child custody. If that parent is unfit the court will not award custody of the child to that parent.

Fitness refers to the health and safety of the child. Having a boy/girl friend is not being unfit. It is not unfit if the custodial parent is living with their boy/girl friend. Committing adultery is  also not being unfit. Unfitness relates to the safety and will being of the child.

The issue of fitness for  custody may not always take into account moral fitness. In some custody decisions courts have stated that morality or immorality is not as important as considering the total circumstances.

For example, a mother will get child custody even if she is committing adultery if she is a good mother in all other respects. She won’t get custody if she brings strangers home every night or engages in wild drunken parties. A parent who is a drug or alcohol abuser could be found unfit. A parent with serious emotional or psychological problems could be found unfit.

A parent who neglects the child will also not get custody. The term “neglect” in a child custody case has a specific meaning. A child who is not fed, washed or properly clothed is neglected. Physical abuse is also considered a form of neglect for a custody proceeding.

In most child custody cases both parents are fit. Generally the primary caregiver will get custody. A non-working spouse is generally the primary caregiver.

There is no law or rule that child custody will go to the non-working spouse. It is merely my own personal observation.

When both parents work, it is less easy to determine who will get the child if there is a custody battle.

Be warned: fighting for custody is expensive. I repeat, a custody battle can be  expensive.

It is not unusual for the legal bills in a custody case to exceed many thousands of dollars. Also,the children do suffer in a bruising custody battle. Before launching a custody case, consider the affect on the child.

When there is a custody battle, the court will appoint a lawyer for the child. This lawyer is known as the law guardian. Typically, the parties will share in paying the law guardian’s legal fees. The court will also appoint a psychologist to examine the parties and the child (or children.) The fees for this serve are generally between six to eight thousand dollars. Again, the parties will have to pay for this.

Finally, there is the trial. A child custody trial is emotionally brutal. When this line is crossed, there is little chance that the parties will be civil to each other again, let alone friendly.

In the posts, there are several articles covering more specific topics in the are of child custody law.