Unlike many other states, New York has several rules explicitly dealing with child custody issues. These are unique to New York and may have further implications if either spouse or the child lives outside New York.
Some of the unique features of New York child custody law include:
- In divorce actions, if there are children under the age of 18 who reside in the state of New York, a demand for custody is mandatory.
- If the children live outside the state of New York, custody is not allowed to be determined (except in certain instances according to stipulation or agreement between the parties).
- Both parents must support children under 21 years of age to the extent that each parent can do so under the Child Support Standards Act.
- Custody cannot be awarded to individuals other than the child’s mother or father, except under very limited circumstances which need additional hearings.
- In the instance where a change of residence is involved, a New York court will give preference to the custodial parent’s decision to relocate (so long as their intent is not to frustrate the visitation rights of the non-custodial parent).
These rules are specific to New York and may not apply to the laws of different states. Also, several federal child custody laws sometimes overlap with state guidelines. Thus if you are filing for divorce or separation in New York, it helps to be mindful of these different requirements.
Rule: Children Come First in Child Custody Laws
Child custody is one of the most critical determinations that a court often has to make regarding family law issues. Child custody laws can be complicated. Determining custody rights over a child or children must be done carefully, as such decisions can profoundly impact the child that lasts for long periods.
When determining child custody rights, child custody law places the child’s interests and background first before any parent’s personal preferences. This is known as the “child’s best interest standard,” the leading standard for child custody cases. This means that courts will only make child custody determinations if they help the child.
Therefore, if a parent is considering how to get custody of a child or become a custodial parent, they must prioritize the child’s best interests, as this is what the courts will do during the custody hearings. The custody of a child is an essential determination, and the more that the parents understand about child custody rights, the more efficient the process will be.
What Are the Factors to Consider for Child Custody?
When resolving child custody in a family court setting, courts will view a wide range of factors that might affect the child’s well-being. These factors, of course, will be counterbalanced against the child’s best interest standard to ensure that the custody decisions do not hurt or negatively impact the child or children in any way.
Some common child custody factors used by courts in a divorce or legal separation context may include:
- Each parent’s relationship and history of interactions with the child;
- Whether one parent has been the primary caretaker of the child;
- The child’s background and adjustment to their residence, school, and neighborhood;
- The mental and physical health of the child, as well as the parents;
- Whether the child has any specific health, medical, or psychological/emotional needs;
- The wishes of the parents (if both parents agree to a particular custody arrangement, the court will usually choose that arrangement);
- The child’s wishes (if the parents cannot agree on a custody arrangement, the courts will give substantial weight to the child’s preferences);
- The overall preferences of the child, especially if they are above a particular age.
So, for example, if the child has special medical needs, the court will factor this into their determination concerning custody. One parent might be more familiar with the child’s special needs and therefore may be granted more custody rights than the other parent.
What Are the Factors That Courts Cannot Use to Decide Child Custody?
There are also certain factors that the courts cannot use in determining child custody. These may be due to other related laws, such as discrimination laws, that interact with child custody laws and must be observed. Some factors that courts can’t use in a custody determination include:
- Race: Courts generally cannot form a custody determination based on whether one parent is of a particular race or if they are dating a person of a particular race. Racial background is generally not used in custody decisions unless it can be shown that consideration of race would help the child;
- Religion: Courts are generally not permitted to base child custody arrangements on religious matters or preferences. There may, however, be exceptions in cases where the child is being abused or placed in danger by specific spiritual practices;
- Gender: Traditionally, family courts automatically awarded child custody (or a majority of the custody) to the mother, as it was assumed that the mother was the primary caretaker for the children. Nevertheless, this has changed in recent times, and courts now concentrate on a more comprehensive set of factors to resolve child custody and custodial parent arrangements;
- Disability: Just because a parent has a legally-recognized disability does not automatically preclude them from getting child custody. Rather, courts will look into whether the disability would prevent the parent from performing their parental duties if they were granted custody.
Can I Move if There Is a Child Custody Order?
When a couple with children goes through a divorce or legal separation, child custody must be determined. The parents may either agree on a custody arrangement together, seek help from a mediator, or present their cases before a judge who will decide the custody arrangement.
A child custody order will then be legally binding and enforceable. If it can be accomplished, then courts will always favor custody orders that allow both parents to maintain frequent and continuing contact with the children, as this generally benefits them.
Occasionally, one or both parents will need to move or relocate, whether for a new job opportunity or personal reasons. Nevertheless, this can cause problems with the child custody order if the move interrupts the custody and visitation schedule.
The parent needs to consider whether the move is necessary and how it will affect their children. They should also get informed of any legal consequences resulting from the move.
Should I Hire a Lawyer to Assist Me With My New York Child Custody Case?
Whether you are the custodial parent or a non-custodial parent seeking custody of the child, a lawyer can help inform you of the laws and guide you in preparing your argument as to why you should be granted custody. This is especially true if you are not the child’s biological parent.
The laws of New York regarding child custody are very different from the laws of other states, and they may present unique interplays between federal laws and regulations. In this case, hiring a local New York child custody lawyer is highly recommended and may even be necessary due to the complexity of the laws governing child support.