When Minor Children are Involved, Child Custody Issues are an Integral Part of Divorce Proceedings
Divorce is difficult for everyone involved—not merely for the divorcing parties, but often for in-laws, mutual friends... and especially for the children of the divorcing couple. An unfortunate aspect of many divorces in which minor children are involved is a custody battle.
While the parents of children most often want what is best for their children, they cannot always judge what is in the midst of the emotional and financial turmoil that often accompany divorce. Accordingly, family courts and family law were put into place to ensure that the focus of child custody and child support hearings remains upon what is best for the children, and not what merely serves the interests of either parent. As a result, so long as one of the parents can demonstrate that a particular custodial arrangement truly serves the best interest of a child or children, a parent may prevail in proposing a particular custody arrangement to the court.
Child Custody Proceedings are Not Always Easily Resolved
Despite what people may assume—for example, that the mother will more likely win custody—the results of a child custody dispute are never a foregone conclusion, and they can become very complicated. There are a wide variety of considerations that the court must consider in approving or deciding a particular child custody arrangement.
First of all, courtroom child custody disputes involve children under 18 years old. After a child turns 18, the court lacks jurisdiction to decide custody for that child, notwithstanding the fact that the parents may continue to involve an older child in their own disputes with respect to support, who will pay for educational costs, medical expenses and medical insurance.
Second, custody relates not only to where the child resides (residential or physical custody), but who is given the right and responsibility to make decisions for the child (legal custody), such as making medical decisions, being able to make decisions about the child's education, and so on. In many cases, both parents will want to share in these responsibilities, in which case they will have a joint custody agreement. As a rule, courts prefer that both parents continue to develop a positive relationship with the child or children.
In some cases, one parent may not want custody, or may believe that the other parent is not fit to have either physical or legal custody. In those cases, the court may award sole custody to one parent. However, sole custody does not relieve the non-custodial parent from bearing his or her child support responsibilities. Conversely, it does not mean that the non-custodial parent has no rights, such as visitation rights, that the custodial parent must honor. However, special conditions may attach to such visits, such as requiring a third party supervisor where a parent has a history of substance abuse, domestic violence, or mental instability.
In some cases, neither parent may be fit to care for the child or children, in which case other interested parties -such as grandparents, aunts, uncles, or even more distant relatives - may apply for custody. These parties may also seek custody where the parents have abandoned, neglected or abused the children, and the third party or parties can demonstrate that granting custody to them would serve the best interests of the child or children.
In determining what is best for the child or children, the court will consider many factors, including:
- The age of the child (or children)
- Whether one parent has been the primary caregiver of the child
- Whether the child has any special needs
- The parenting skills of each parent
- The mental and physical health of the parents
- Whether there is any history of domestic violence
- The work schedules and job demands of each parent
- The proposed child-care plans of each parent
- The child's own preference, depending upon his or her age
- Each child's relationship to siblings, half-siblings, step-siblings, and other members of the family, including grandparents or other extended family members
- Each parent's willingness to work with the other parent and to nurture a positive relationship with the other parent, if there are no factors which militate against the furtherance of that relationship.
Because there are so many factors that may weigh in the court's judgment of what is or is not in the best interests of the child or children, child custody battles can be very difficult. If a party can show that one arrangement is better than another arrangement regardless of how fair it may seem on its surface, the court has discretion to award custody to award custody to that party.
When You Confront a Conflict Regarding Child Custody, You May Need an Experienced Family Law Attorney to Assist You in Mediation or Litigation
When parents cannot agree on a mutual child custody agreement on their own, or cannot resolve specific conditions related to a custody arrangement, they may want a court to decide. In litigation, the parties adverse to one another, as each parent attempts to persuade to get the court to decide in a way that is favorable to them.
Anytime there is a conflict between divorcing parents on matters relating to child custody, it is in their best interests to hire a qualified and experienced Family Law trial attorney to represent them in litigation. Not only can your attorney advise you about the law, but his or her experience can serve you by identifying issues and questions you may not have considered in developing any proposed arrangement. Your attorney can negotiate on your behalf, insulating you from some of the emotional aspects of dealing with an estranged spouse, and can help you understand both the immediate and long-term effects of any proposed agreement.
The attorneys at the Law Firm of Jason M. Barbara & Associates, P.C. understand how difficult it is to dissolve a marriage when young children are involved. We have represented many clients in their custody battles and assisted them in obtaining the best results. By drawing upon our considerable experience and deep understanding of how the family court system and laws work, we can evaluate your situation and help you to negotiate a reasonable solution. We will prepare and review the necessary paperwork and ensure that the custody and visitation orders are fair to both you and your child. Whether you are preparing for a custody battle, find yourself in the middle of one, or need to modify an existing custody arrangement, our firm is ready, willing, and able to assist you. Contact our Long Island office today at 516-775-5557 or use the consultation form here on this website to find out how we can help you.