Top New York Custody Attorney

Perhaps the most heart wrenching aspect of matrimonial law, whether it be separation or divorce, is the impact it has on the children and their relationships with their parents. When couples stop living together, the children generally are required to live with one parent, with very little input, if any, from the child. Obviously, the older the child, the more impact his or her desires will have on the issue of who they will reside with. Generally, the desires of a child under the age of 12 will be given little consideration, and as the child becomes 14 or older, greater weight is given their desires. In matrimonial actions a law guardian is often appointed to represent the interests of the child.

Custody does not merely involve with whom the child resides, but also involves issues of decision making, which our judicial system assigns to the custodial parent, subject to judicial review, taking into consideration the best interest of the child. Thus choice of religion, education and school, selection of health care provider and need for medical and dental care (both elective and routine), and summer and school vacation activities for the child are issues determined by the custodial parent, often without any input from, or consideration of the desires of the non-custodial parent.

Joint custody is a legal concept which has been gaining favor but is still not the standard in custody disputes. Joint custody takes many forms, from a mathematically accurate equal sharing of time with the child to the child residing with one parent primarily and the other having either input or equal say in the custodial issues which affect the child’s life, like those mentioned in the above paragraph.

A collateral aspect of custody is the visitation rights of the non-custodial parent. Such rights are often determined by negotiation by the parties and their matrimonial counsel, and when such efforts are unsuccessful, then by the court. Although there are no hard and fast rules, visitation frequently occurs on weekends, once or twice midweek and on school holidays and vacations.

Once the custodial arrangement is established, what happens when the custodial parent wants to move to another jurisdiction, whether for family, work opportunity, remarriage, health or spite reasons? If the parties are unable to agree, the courts are required to determine the right to move using “the best interest of the child” test as its paramount criteria.