HOW CHILD CUSTODY IS DETERMINED IN NEW YORK

Undisputed Legal | Custody Process Service

The general test in determining custody in a contest between parents is the child’s best interest and welfare. Court decisions set forth several factors that 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 the home environment and the parental guidance each

parent provides;

(5) The power of each parent to provide for the child’s emotional and

intellectual development;

(6) The relative fitness of each parent;

(7) The length of time the present custodial arrangement has been

in effect;

(8) The desires of the child.

GUIDELINES FOR CLIENTS IN CUSTODY AND VISITATION CASES

We have found that the outcome of a custody or visitation case depends, in large part, on the preparation which goes into it. In that regard, there are many things which you can do to aid in the preparation of your case.

The following are areas where your preparation can be most helpful:

1) JOURNAL

Your custody or visitation “journal” is a daily record of events that impact your

children’s lives and which reflect upon either parent’s abilities as a caretaker for your children. This journal should be kept daily, both so that you do not forget important events and so that you are not later accused of “erasing” events that may or may not have occurred.

It would help if you listed both the routine and special events on a given day. While routine items (e.g., preparation of a meal) may not seem important at first when viewed as part of a long-term care pattern, they take on great significance. Be as detailed as you like; for example, your description of a meal’s preparation might include a “menu” (to show that your children receive nutritional meals), as well as a description of the children’s roles in setting the table, in fixing the salad or dessert, and in helping clear the table (to show that they are taught a sense of teamwork and responsibility).

Your journal should also include statements that the children make or a description of matters you and the children discuss. These do not need to be matters directly relating to the custody and visitation issues. In most cases, it is not helpful for you to “provoke” discussion in those areas but may include your children’s feelings about you or the other party, as well as their statements about day-to-day occurrences in their lives.

The contents of your journal will likely be used in court should your case go to trial. Oftentimes, it can be utilized to show your contemporaneous recording of events or to refresh your recollection on the witness stand. Because of this, you must be careful what you write. Your journal is obviously not the place for you to chronicle your love life or apologize for any shortcomings you may feel you have as a parent. It should not contain any inappropriate language or comments.

And, while it is o.k. to write about actual events or statements which put the other party in a bad light, be careful not to overdo it. The tone of your journal generally should be positive and a reflection on your good points. It should not be solely a “smear piece” against the other party.

Your journal is one of the most important devices available to assist in your case. For that reason, we encourage you to take the time to make and keep this record.

 2) PHOTOGRAPHS/VIDEOS

The adage “a picture is worth a thousand words” often holds in custody and visitation matters. It is almost always the case that photographs can be used to illustrate some aspect of your care and ability to parent, whether it be to show the Court the physical setting (home, living and sleeping areas, nearby playgrounds, etc.) you provide your children, or the various events and activities which you enjoy with them.

If you do not have a camera, get one. There are good, inexpensive, disposable cameras available almost everywhere. Photograph your home and all its living areas, giving special attention to where the children eat, sleep and play. Please take pictures of the yard, nearby playgrounds or parks, and any other places (e.g., grandparents’ house) where the children spend a substantial amount of their time.

Photograph routine events in the children’s lives (such as getting off the school bus or saying bedtime prayers) to illustrate how their days are spent and your involvement daily. Photograph special events, holidays, trips, and vacations, and be sure to include your children’s friends and extended family (grandparents, aunts, and uncles, cousins) in photos of family gatherings. Do not forget to include yourself in many of these photos.

If any “bad” things appear, such as your children having injuries or bruises, you should (among other things) take a picture. You should also take steps to preserve any photographs or family albums you already have so that a record of your past involvement in the children’s lives can be shown to the Court.

Videos are another means to depict your involvement with the children. ONE WARNING: Since most video recordings also include sound, be careful that you are not heard “directing” your children about. Our purpose in proving your genuine love and care for your children may be undermined if you are perceived to have “staged” certain events.

3) AUDIO RECORDING

An audio recording (i.e., a tape recording) of statements or other events may prove helpful in certain circumstances. For example, if the other parent is often drunk or chronically shouts at the children, a recording of his/her voice may help prove it. Another typical example occurs when parties live apart, and one party uses the telephone to issue vulgarities to the other or act unreasonably in terms of visitation.

Extreme caution must be exercised, however, before audio recording is done. There are two reasons for this: First, certain types of recording (e.g., a telephone “tap” between two unsuspecting people) is illegal and cannot be used for any legitimate purpose; Second, we want to be sure your tape recording does not lead to your “provoking” family conflict or even violence. If it does, and a neutral listener hears the tape, chances are you will not gain from it.

4) RECORDS AND DOCUMENTS

It would help if you began gathering those records and comments to demonstrate your caring for your children. Examples of these include pediatrician’s bills (to

show your attention to health matters), report cards and school correspondence (indicating your involvement with your children’s education), and similar formal documents.

Other examples of items you should provide are “informal” documents such as cards made for you by your children, the artwork was done at school, or anything you feel may give some insight into your children’s care and feelings about things. Indeed, you should not limit yourself to just “documents.” For example, a birdhouse built by your children, and you may help to tell a story to the Court.

5) LETTERS OF REFERENCE

In many cases, it is helpful to have letters from persons familiar with you or your children. These may include neighbors, teachers, babysitters, or anyone else having information that would support your claim. Letters from your parents and family may be beneficial, as may those from your employer.

These letters should explain how the writer knows you or your children and what he/she has observed. The writer may wish to state an opinion about your abilities as a parent or your relationship with your children, which is welcome.

These letters are not “evidence.” Their usefulness is somewhat limited by the strict rules of evidence which the courts must follow. Their purpose is threefold: 1. To provide you with a good idea of what people are likely to say if asked to comment on your situation, 2. To get people “thinking” about your case, and how to help you (oftentimes people will remember helpful facts which would not otherwise have come to mind); and 3.To “lock-in” a person’s comments (someone’s opinion of you is less likely to change at Court if you already have something in writing from them).

6) CUSTODY WORKSHEET

On this same site, please check out the Custody Worksheet.

It asks that you provide information and comments regarding many aspects of your children’s care. It also gives you a rough idea of things that might come up in court or negotiations.

It will help if you begin organizing your comments in the format set out in the Worksheet. You will find that these comments will overlap those made from day to day in your journal in large part. This is fine, but you should also feel free to note any past events or actions which would bear upon the topics listed on the Worksheet. Please consider when preparing your comments whether any photographs or similar means might be available to illustrate your points.

CONCLUSION

These guidelines will get you started on the preparation needed for the best presentation of your case. Please give them your careful attention.

For more information on serving custody papers, contact Undisputed Legal our Custody Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

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