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Thursday, May 9, 2019

How does the Court determine best interest of the child in a New York Custody battle?, by Brooklyn Family Court Attorney

In order to determine what is in the best interest of a child in a custody case the Court must only make this determination following a full and comprehensive evidentiary hearing.   The New York Courts hold that parents have a fundamental right to custody of their children but neither parent, whether male or female has an absolute has right to the custody of the child or children.

 

If you have a custody case pending, your Brooklyn, New York  your attorney will help you to build a case in convincing the Court that it is in the best interest of the child to be with you.  The best interest of the child standard is based upon evidence that shows what parent best promotes the child’s welfare and happiness.  

 

Therefore the Court will first consider the welfare and interests of the children in making its determination.   The interests of the children are paramount and in the case of a custody battle where the parent’s interests conflict the rights of the parents are secondary to their children’s interests. 

 

When a New York Family Court Judge or Referee makes a Custody determination, after a full and plenary hearing, the goal is to make a determination that is just and long term to avoid children being shuttled back and forth between divorced parents.  

This is a serious determination to be made by the Court and your New York Family Court Lawyer will have to carefully and comprehensively present the material facts to permit the Court to ascertain the best result for the child.

 

An evidentiary hearing on Custody will test the credibility and sincerity of witnesses and bring out evidence of the character and temperament of the parents.  

The Court will consider the following in determining the best interest of the child:

 

Age of Parents:  if one parents’s age impacts that parents ability to care for the child then this is a factor the Court will consider.

 

Alcohol and drug use: if one parent uses drugs and alcohol more than the other parent and this use has impaired that parent’s ability to care for his or her child the court will take this into consideration.

 

Availability of parents: the parent that has more time to tend to the child’s needs will have an advantage.

 

Disability and physical health:  if one parent’s disability or physical health impairs their ability to care for the child then this will be taken into consideration in determining best interests. 

 

Domestic Violence: the court must consider any evidence of domestic violence between the parties and is a strong factor in determining best interests. 

 

Existing informal custody arrangements: if prior to going to Court the parties had a long term existing custody arrangement, the Court will take this into consideration.

 

Existing written custody agreements:  these are strongly considered by the Courts but they are Not necessarily bound by them.

 

Finances of the parents:  Although financial disparities between incomes of parents can be offset by child support orders, a parent that is unable to secure housing or the basic necessities for their child may be in a worse legal position than the parent that can provide these necessities. 

 

Findings of child abuse and neglect:  A finding of child abuse or neglect against a parent can negatively impact your chances at a custody trial.

 

Forensic evaluation:  Done by a mental health professional who provides a written report to the court. The findings of this report will carry great weight in influencing the court’s determination and custody.

 

Home environment: The suitability of the home environment of the parent will have a strong influence over the decision about custody. 

 

Lawyer for Child: The lawyer for child opinion about who should have custody carries a significant amount of weight with judges in family court cases.

 

Marital fault:  Generally marital fault does not play a role in the determination of custody, however, if the parents behavior is so egregious, then it may be a factor. 

 

Mental and Emotional stability:   The mental health of both parents are very important factor in custody determinations.

 

Parents behavior in court: I have personally seen cases lost my parents because they were unable to control their self in a court room.  Common offenses are speaking over their own attorney and interrupting the judge.

 

Preferences of the child: when a child is able to make informed decisions, generally in the child’s teenage years, the court will strongly weigh their opinions about what they want insofar as a custody determination is concerned.

 

Primary caretaker: The parent that has long cared for the child’s needs, like taking the child to doctors appointments, going to school functions etc. has an advantage over the parent who has not done this in a custody hearing

 

Religion:  when a child is raised in one religion, the court will look at the parent best suited to continue this child’s religious upbringing.

 

Siblings: The courts have a mandate to keep siblings together.

 

Willingness to foster the child’s relationship with the other parent: this is one of the most important factors in custody determinations. A parent that has alienated or attempted to alienate the child against the other parent  is looked upon very unfavorably and will likely lose custody.

 

There are no absolutes in child custody cases and all determinations of Custody are products of the Court’s discretion after it weighs relevant information to enable it to make an informed determination as to the child's best interest.

 

If you feel that your right to trial is not being adequately presented in Court and that decisions are being made that are contrary to your interests, contact a Brooklyn Family Court Lawyer before its too late. 


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