Exploring Child Custody

When a marriage ends up in a divorce, the split not only has an impact on the couple but also on their children, if any. Child custody and visitation is one of the most important decisions that a couple has to take when they get divorced.

Child custody comprises of two parts. There is legal custody which refers to the right and responsibility to make decisions for the child or children involved and there is residential or physical custody which deals with where the child/children will live once the parents split up.

Parents can file for joint custody where both parents are involved in the decision making process for the child. This includes any decisions pertaining to the child’s education, health, upbringing and so on. As far as day-to-day decisions are concerned, the parent who is physically caring for the child at that point in time holds the responsibility to take the decision. For couples who do not wish to pursue a joint custody arrangement, they can file for sole custody. In sole custody, only the parent who gets custody of the child retains the right to take major decisions about the child.

Generally, the courts prefer joint custody arrangements as they feel it is generally in the best interest of the child. However, if the court feels the child/children may be at risk, they may grant sole custody to one parent. In any case, both parents have the rights to visitation no matter who gets custody.

It is a common misperception that courts favor mothers more than fathers in custody matters. That is not the case. Custody decisions are based on what the court feels would be best for the child. In addition, courts in New York have no say about custody and visitation if the child is eighteen or older.

Factors that are generally considered when deciding on who gets custody include an evaluation of who is the child’s main caregiver, the parenting skills of each parent and their strengths and weaknesses, the mental and physical health of the parents, any previous history of domestic violence, the work schedule of the parents, the child’s relationships with family members and the level of cooperation among the parents.

A couple always has the option of settling the custody issue through mediation. This is a voluntary process that involves a mediator who helps the couple develop a parenting plan. The mediator is not a decision maker but instead helps both parties to resolve any conflicts that may exist. If the couple is successful at reaching an agreement, it can be sent back to court and once the judge approves, it can become an official court order.