Child Custody Attorney in New York City

Divorce is a time of great stress and profound changes in one’s life. If there are children involved then the whole process becomes even more trying. Who gets the children? Who gets to decide their education, health care, and other directions in life?

Issues of legal and physical custody dominate divorce proceedings when children are involved. Legal custody concerns who gets to make the decisions regarding the child or children, and physical custody involves where the child or children live. In both types of custody, the arrangement can be sole or joint.

These issues can be resolved in two ways: the divorcing couple can agree on the legal and physical custody arrangement, or they can leave it up to a judge in a family law court to make the division of custody.

If you are contemplating or already involved in divorce proceedings in New York City or the five boroughs, contact me at the Law Office of Seth D. Schraier, P.C. today for legal guidance. I will work with you to resolve your custody issues in a compassionate and professional way. Likewise, if you are already divorced and looking to modify an existing custody arrangement, I stand ready to help.

Establishing a Child Custody Arrangement

The first distinction to consider here, as mentioned briefly above, is first, who gets to make decisions regarding the child’s education, health care, and other directions in life, which is called legal custody. The second type of custody is called physical or residential, in other words, where the child lives.

In both types, there can be sole custody or joint custody. For instance, if both parents are charged with agreeing upon the child’s welfare and direction, that is called joint legal custody. If only one parent is so empowered, it is called sole legal custody. 

Likewise, with physical custody, there can be sole custody that empowers one parent to have primary residential custody of the child, or there can be joint custody, which sees both parents splitting physical time with the child. Joint custody does not necessarily mean a 50/50 split but can be that one parent has weekdays with the child and the other weekends.

Divorce can be either uncontested or contested. Uncontested means the parents agree among themselves on the issue of legal and physical custody and present the agreement to the court. Contested means they, for whatever reason, cannot decide among themselves, so they submit the decision regarding custody to the judge. In other words, there are two options:

UNCONTESTED: You and the other parent can draw up your own terms and present them to the court for approval. Whenever possible, this is the quickest, least expensive, and most painless option. An experienced attorney can help you keep the conversation productive and on track.

CONTESTED: If you and the other parent can’t come to an agreement, you’ll take the case to family court and the judge will use his or her best judgment in establishing a custody arrangement. You still want an attorney presenting your case to give you the best chance of arriving at the arrangement you know is best for your family.

Standards the Court Will Use in Deciding Custody

In a contested divorce, the court will decide the issues of physical and legal custody based on “the best interests” of the child or children. While it is widely assumed that the mother will generally be awarded custody in a contested divorce, New York state’s Domestic Relations Law 70 specifies that neither parent can be favored in a divorce proceeding.

The judge in a divorce proceeding involving a child will consider, among other factors:

• Each parent’s relationship with the child

• The child’s ties to the school, home, and community

• Each parent’s role in caring for the child

• Each parent’s age, and physical and mental health

• Each parent’s willingness to foster a caring relationship with the other parent

• Any history of domestic abuse

• Any other factor affecting the child’s well-being

Modifying a Child Custody Order or Agreement

If conditions change, one parent may wish to modify the existing legal and physical custody arrangement. For instance, your financial situation may have changed, or the other parents may have. A modification request could also be triggered if you determine the other parent is not living up to their obligations.

In either of these cases, the parent seeking a modification can file a custody petition with the court that ordered or approved the arrangement. The petition will be heard by a judge or court attorney-referee or be referred to mediation. New York also sponsors a Custody/Visitation Modification Petition Program to help facilitate the process.