Child Custody Laws
Issues of child support, custody and visitation rights arise during divorce proceedings. Child support is based on the policy that both parents are obligated to support their children, even when the children are not living with both parents.
In divorce, one parent is often awarded custody or, where there is joint custody, is designated as the primary residential parent. In most jurisdictions, the issue of which parent the child will reside with is determined in accordance with the “best interests of the child.” Typically, courts permit visitation/access rights to non-custodial parents. Non-custodial parents still remain obligated to pay a proportion of the costs involved in raising the child. Child support may also be ordered to be paid by one parent to another when both parents are custodial parents and they share the child raising responsibilities.
There are a few terms you should know that pertain to child custody. “Physical custody” refers to where the child lives. “Legal custody” refers to which parent has the legal authority to make decisions involving the child (including medical, educational, and religious decisions). “Joint custody” means joint legal custody, and not how much time the child spends with each parent. Joint custody gives both parents equal decision-making authority, so they maintain an equal role in raising the children. Pendente lite, or temporary custody, is a custody order issued by the court once the case has been filed, but before the trial. It determines where the child will stay “pending the trial.” When it comes to custody, courts base their decisions on “the best interests of the child.” But, how do they determine best interests? There are a number of factors:
Preference and age: In New York, 18-year-old children are no longer subject to an order of custody. They can choose where they want to go. At the same time, many courts will hesitate to influence the choice of a 16- or 17-year-old, unless the teenager has serious problems or his/ her choice seems unreasonable. With younger children, preference is not given the same weight, as young children are not considered capable of assessing their best interests. Still, the preference of the child is considered, as it may indicate which parent has bonded more with the child.
Keeping the status quo: If parents have been living apart and have established an arrangement for where the children live, the court may be inclined to continue this arrangement.
Siblings: The court usually prefers to keep siblings together, unless the needs of the children differ greatly. In that case, the court may split them between the parents.
Stability: The court tries to keep children in the environment they know — same neighborhood, same school, same friends. If a parent chooses to move, that becomes a factor for custody.
Quality of life: The court will take into consideration the quality of the home space, cleanliness, neighborhood safety, and quality of available health care, amongst other factors.
Parental stability: The court also considers the stability of the proposed custodial parent, including history of mental illness, drug or alcohol abuse, and criminal history.
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An order of custody is always subject to an order of visitation for the non-custodial parent. Courts often dictate a specific visitation schedule. Unless the court specifies terms and activities for the visitation, the custodial parent cannot interfere with the non-custodial parent’s visitation. If the custodial parent withholds visitation, he or she may be held in contempt of court. If this happens consistently, the court could decide to change custody.
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