By: Undisputed Legal/Family Court Process Service Department
The general test in determining custody in a contest between parents, is the best interest and welfare of the child. Court decisions set forth several factors which are to be considered in determining best interests. These factors are as follows:
(1) The parent who has been the primary caretaker;
(2) The need for stability and continuity in the child’s life;
(3) The relative financial ability of each parent;
(4) The quality of home environment and the parental guidance each
(5) The ability of each parent to provide for the child’s emotional and
(6) The relative fitness of each parent;
(7) The length of time the present custodial arrangement has been
Police questioned arrested person at police station for four hours until he confessed. The court was concerned about psychological coercion. Escobedo v. Illinois, 378 U.S. 478 (1964).
Officers agreed to drop some charges if suspect would confess to kidnaping. Suspect agreed and confessed. He was convicted of kidnapping and rape. Conviction overturned by court. Miranda v. Arizona, 384 U.S. 436 (1966).
The Family Court of the State of New York has the authority to decide cases affecting the lives of children and families. The court has a wide range of powers to fit the needs of the people who come before it.
The Family Court Act gives the Family Court power to hear certain types of cases. Each case filed is given its own identifying number, called a “docket number.”
The docket number begins with a letter that identifies the type of case filed:
Under the First Amendment to the United States Constitution, both parents have a right to practice religion or not practice religion as they see fit. A judge is not supposed to make value judgments about whether a child is better off with or without religious training or about which religion is better. If a child has been brought up with particular religious beliefs and religious activities are important to the child, a court might favor promoting continuity in the child’s life, but the court should not favor religion per se.
In some cases, a parent’s unusual or non-mainstream religious activities may become an issue. Normally, a court should not consider a parent’s unusual religious practices in deciding custody or visitation unless specific harm to the child is shown. If, because of a parent’s religious beliefs, a parent has not given the child needed medical care or has tried to convince the child that the other parent is evil and should not be associated with, that could be a basis for placing custody with the parent whose religious conduct does not harm the child.
There is no one factor that is invariably “the” most important factor in a custody case. The importance of a particular factor will vary with the facts of each case. If one parent in a custody dispute has a major problem with alcoholism or mental illness or has abused the child, that of course could be the deciding factor.
If neither parent has engaged in unusually bad conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as the primary caretaker factor. If one parent can show that he or she took care of the child most of the time, that parent usually will be favored for custody, particularly if the child is young (under approximately eight years old).
Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody.
There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent.
In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother is fit.
Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child.
In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. That parent usually is called the custodial parent. The other parent generally is referred to as the noncustodial parent. The noncustodial parent almost always has a right of visitation a right to be with the child, including for overnight visits and vacation periods.
In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child.
A question often arises on the effect of joint custody on child support. The effect of joint custody will depend on the nature of the joint custody arrangement. If the parents have joint legal custody(by which they share making major decisions regarding the child), that by itself will have little effect on child support. If the parents have only joint legal custody, one parent still has primary custody of the child and handles payment of most of the child’s day-to-day expenses. The custodial parent’s expenses for the child have not been reduced by the joint custody arrangement.
If the parents have joint physicalcustody, with the child spending a substantial amount of time with each parent, and if the parents have approximately equal incomes, it is possible neither parent will have to pay support to the other. The father and mother will pay the child’s day-to-day expenses when the child is in their respective homes. The parents, however, will need to coordinate payments on major expenses such as camp, school, clothing, and insurance.
The laws relating to custody emphasize the best interest of the children. Both natural and adoptive parents may not ordinarily be denied custody unless there is gross parental unfitness.
There are numerous factors considered by the court in making custody and visitation determinations. Such factors include age, physical, mental and emotional health of the child or parent, and the quality of the home environment, including continuity, stability and security in the child’s home. Other factors that are considered include the primary caretaker status of a parent (which may not necessarily override other factors), whether a parent has made unfounded allegations of abuse, and the recognition (or lack thereof) of the importance that a child have a relationship with the non-custodial parent (alienation). Custody is not awarded after a child has attained the age of eighteen. (Note, however, that the statutory “cut-off” for child support, absent other agreement of the parents, is twenty-one years of age). When custody is contested, the court may appoint an “attorney for the child” (formerly called a “law guardian”) to represent the child(ren). This person is a lawyer who will interview the children (if age appropriate) and represent the child(ren)’s wishes to the court. If the child is of a young age this person is required to make a recommendation to the court concerning the custody arrangement.