How Does the Court Decide Who Gets Custody?

Posted By Staten Island Divorce Lawyer || 9-May-2013

There are many aspects that the courts consider when awarding custody to parents in child custody cases. Most courts use the philosophy of deciding what is the "best interests of the child" when dealing with child custody cases. In order to determine the best interests, the court takes many factors into consideration:

  • The age, sex, and health of the child
  • The mental and physical health of the parents
  • The parent's lifestyle; ex. Smoking
  • The current emotional bond between the parent and child
  • The ability of the parent to provide for the child
  • The impact of environmental change on the child
  • The child's preference if around the age of 12 or older

Using these factors, the courts may deduce a parent who is favored and better suited. There are times, however, when there is not a clear decision and the parents appear to be equal in their abilities and likelihood of providing a stable environment for the child.

In these cases, for young children, the court may award custody to the parent that has been the primary caregiver for the child. In other instances, custody may be given to the parent who is thought to be able to continue the child's education, known neighborhood life, religious institutions, and current peer relationships. This is a better way to maintain the status quo for the child which can in turn help them adapt to the separation process of their parents.

Two Kinds of Custody in NY

When awarding custody, there are two parts: the legal custody and the physical custody.

The legal custody of a child presents specific rights to a parent; the parent receiving legal custody has the responsibility of making certain decisions for the child's life, including:

  • Education
  • Religion
  • Medical care
  • Child's upbringing

Then there is also physical custody, which grants that parent the right to physically have the child with him or her. The child would live primarily with this parent and the other would get visitation.

A parent can receive sole legal custody or sole physical custody or in some cases both if the other parent is considered unfit. In most states, however, sole physical custody is not usually granted because there are benefits to having both parents in the child's life.

The process can become more complex when joint custody is brought into play. If parents receive joint legal custody, then they have to make the decisions for the life of their child together. If a parent fails to do so, then they can be taken back to court. Joint legal custody is preferred in many states unless it is not in the best interests of the child.

Joint Custody

There are several ways the court can award joint custody. Usually parents can work out a schedule that works for both of their work requirements as well as the needs of the child, but if this does not happen, then the court will force an arrangement.

Some of the arrangements that the court can make include:

  • Switching off weeks between the parents
  • Alternating months
  • Splitting years into 6 month periods
  • Alternating years
  • Separating weekdays from weekends and holidays

Bird's nest custody is another option for joint custody, in which the child remains in the family home and the parents switch off living there. They will move in when it is their time with the child and then live in separate housing outside of the home when it is not.

This is an effort to maintain stability for the child, because there are a lot of downfalls that can come from joint custody including having to shuttle the children around from each parent's house. Also, if parents find it impossible to get along, the child can be effected in negative ways. There is also an expense aspect that comes from having to maintain two separate households for the child.

On the other hand, the advantages of joint custody are that the child remains in contact with both parents and does not have to live with only one parent. Also, the parents are not alone in raising their children, they have help when it comes to finances, decisions, and parenting in general.

Are You in a Custody Battle? Get a Staten Island Custody Lawyer!

If you are in a custody battle, seek help from The Law Offices of Adelola Sheralynn Dow. Child custody cases can be complex and emotionally draining. There is a lot at stake when the court is deciding whether or not you are going to receive custody or choosing the exact type of custody you will be awarded. Do not be uninformed or ill-prepared, contact an experienced Staten Island divorce lawyer today and schedule a consultation.

Categories: Child Custody