Long Island Child Custody Attorney
Issues in determining who is awarded child custody
The issue of child custody is one of the most important and critical issues in the
dissolution of a marriage. The separation of parents may adversely affect or even
traumatize children. It is almost always preferable for the parties to seek an amicable resolution to all questions concerning residential custody, legal custody (the ability to have final decision-making on major issues) and access of the non-custodial or the joint custodial parent. The guiding principal in resolving these issues is the best interests of the child or children. If parties are unable to arrive at an agreement on these issues, they turn to the Court to render a determination on the primary residence of the children, how major decisions are made regarding the children’s lives and the access each parent will have with the children. Whether these issues are determined in a non-litigation or litigation setting, there is a substantial body of caselaw which has provided parties and Courts with standards and factors to be considered in determining the best interests of the child or
children. These standards are divided into two (2) major categories, Parental Fitness and The Needs of the Child/Children.
(A) Parental Fitness
The following factors should be considered in determining a parent’s fitness
to be the residential and/or legal custodial parent of a child under the age of 18 years:
Abandonment: If a parent has been absent from a child’s life for a substantial period of time, the nature of the abandonment, whether voluntary or involuntary and the length of separation will be considered in determining that parent’s fitness.
Mental Illness: If a parent has a history of psychiatric problems such as depression, paranoia or suffering from delusions, these may render a parent unfit to have custody of the child or children.
Abuse or Neglect: If, during the history of the child’s life, there
is evidence that a parent has been physically or emotionally abusive
or neglectful to a child, this will and should be a consideration in
determining that parent’s fitness.
Abuse of Drugs or Alcohol: While not necessarily determinative, a history of drugs, alcohol or other substance abuse would be considered regarding a parent’s fitness on the issue of custody.
Domestic Violence: If there is evidence that one parent has engaged in acts of domestic violence, it may be inferred that parent might be ill-suited to display the patience required to care for or provide appropriate guidance to a child.
Behavior of the Parties: Considerations that may bear on the fitness of a parent to act as a custodial parent such as one parent interfering with the access of the other parent to the child or children, or denigrating the other parent in the presence of the child or children, or, as may involve parents with anger management problems, living in a chaotic unstable lifestyle or exposing the child or children to ageinappropriate experiences. Another example of inappropriate behavior is unsubstantiated sexual abuse allegations falsely accusing one parent of inappropriate sexual behavior with the child or children.
Financial Resources: If a parent was unable to provide proper housing and utilities for the child or children, that factor may be a consideration in his/her ability to meet the physical needs of the child or children.
(B) The Needs of the Child/Children
In most contested custody cases parental fitness does not present as a major
issue. Generally, where both parents are vying to be the residential and/or legal custodial parent, absent any serious fitness issues, the Court explores factors pertaining to this second category – The Needs of the Child/Children:
Physical and Emotional Needs of the Child/Children: In a litigated matter, and any other process, parties and counsel should attempt to determine which parent is more emotionally bonded to the child/children, who do the child/children seek out when they have a problem, which parent do the child/children look to for care and guidance.
Primary Caretaker: This factor is given great weight. When determining which parent is the primary caretaker, it is important to look into the history of the marriage, not merely the months or year which preceded a dissolution. The parent who has been more involved over the history of the life of the child or children and met their needs – such as preparing meals, scheduling and taking them to medical appointments, purchasing clothes, car pooling. The answers to these questions and others will determine the parent who has acted as the primary care giver.
Willful Interference with Rights of Non-Custodial Parent: While this factor may be closely related to fitness, the failure of a parent to recognize the importance of the other parent to the needs and best interests of the child or children is given substantial weight in making a custodial determination. The alienation of a young child’s mind in an effort to turn him or her away from another parent is a factor which forensic evaluators and Courts have considered in making a determination on the issue of custody.
Stability of Environment: If a parent has moved numerous times over a short span of time, the lack of stability would have an impact on his/her ability to be awarded custody.
Child Care Arrangements: If a working parent sought residential custody over a child or children, the qualify of their child care arrangements will be given consideration in determining the ultimate issue of residential custody.
Religion: If the parents do not practice the same religion, the religion in which the child or children have been raised will be given weight by the Court.
Separation of Siblings: The weight of authority stands for the
proposition that Courts frown upon separating siblings and prefer to
award residential custody of all children to one or the other parent. Of
course, there are exceptions but, generally, the Courts are advised
that it is not in the best interests of the children to separate them from
Age of Child/Children: The older the child is, particularly as a child enters his/her teen years, greater weight is given to his/her personal preferences. For instance, if a 14 year-old child indicates he/she strongly prefers to live with his/her father, that will be given serious consideration in the course of the custody proceeding.
In a custody litigation, the Court will appoint an attorney known as a Law Guardian
to represent the child or children and, frequently, appoint a forensic psychologist or
psychiatrist to render a psychological evaluation of the parents and the child/children. These issues require substantial preparation, the gathering of a great deal of information from third-party witnesses (such as babysitters, housekeepers, activity leaders, teachers, bus drivers, parents of child/children’s friends, health care providers), report cards, activity reports from camps or after-school activities. Exhaustive investigation should be made in determining the foregoing standards and factors which lead to the ultimate question – what is in the best interests of the child or children?
If you are in need of experienced, high quality legal representation, contact the Long Island child custody attorneys at the law offices of Barrocas & Rieger today!