One of the most challenging parts of ending a relationship or divorcing comes from when couples with children have to decide the custody of those children. No parents want to be without their children, but deciding on how to share time with them, who they will live with, and who will care for them can be a long and emotional process. When it comes to custody cases in the state of New York, the best interests of the children involved in the case are the most important, and this is what guides many child custody decisions made by the New York state family court.
Deciding Custody in the State of New York
In New York, family court judges who are evaluating child custody cases are instructed to take the individual facts of the case into account including the circumstances of the parents and children as well as what is in the best interests of those children. Judges in this state are not limited to a list of specific factors but instead have the liberty to make broader discretion and consider all relevant circumstances that could impact the case. Some examples of this include the health and mental wellbeing of both parents, the children’s relationship with other family members, each parent’s willingness and ability to care for the children, and if the parents are able to work together.
Child Custody and Child or Domestic Abuse in New York
A family court judge always takes consideration for any allegation of domestic or child abuse when making a custody case decision. State law dictates that judges in the state of New York must examine any and all allegations of abuse of both the children and/or any other family member that lives within the household. In order to help minimize the number of false child or domestic abuse allegations, parents must make these allegations under sworn oath. When considering whether or not these allegations are true, the court uses “preponderance of the evidence” as its standard of proof.
If the allegations prove to be incorrect and the parent made these allegations in “good faith,” meaning he or she had evidence and reasonable belief to do so, that parent will not be penalized by the court system. However, parents found to be making unfounded allegations of child or domestic abuse will be penalized in some way. Should a parent be found to have abused a child or household member, it is still possible for them to have visitation rights, should the continuing of that relationship be considered within the best interests of the children involved.
However, should the parent have a history of child abuse or domestic violence, it is clear to the court that continuing a relationship with that parent is not in the children’s best interests. This parent will likely be denied the right to be the children’s primary caregiver and, if awarded any kind of visitation, it is likely that visitation will be supervised by a third party in order to ensure the safety of the children during that time.
Given that judges in the state of New York have such broad discretion when it comes to ruling in a child custody case, it may be in the parents’ best interests to create and agree upon their own custody arrangement. It is likely that a sensible custody arrangement that puts the needs and best interests of the children first will be honored and upheld by the court system, which helps parents to avoid having their case evaluated and decided the court itself.
Child Custody Modification in New York
Even though an initial child custody arrangement may work for a number of years, there will likely come a time when the arrangement needs to be adjusted. This is most often due to changes in the children’s needs as they grow or changes in the parents’ circumstances surrounding work or their personal life. Again, if both parents can agree on the changes that need to be made and they are within the best interests of the children involved, the court will likely agree to the changes and uphold them, making them a legally binding part of the parents’ child custody agreement.
Issues can arise, however, when one parent wants to make a modification to the child custody arrangement and the other parent is not in agreement. In these cases, the parent requesting modification carries the burden of proving to the court that the modification is needed by using “clear and convincing” evidence that the changes are in the best interests of the children. Before the judge makes a decision on the modification, he or she will review any previous decisions that were made regarding the case as well as any reports that have been made in regards to current custody.
Custody and Relocation in New York
Relocation is often a touchy issue in terms of child custody and more often than not the family court judge needs to make a final decision for these types of requests. However, on the off chance that both parents agree to the proposed relocation, they can submit their request to the court. The judge reviews the request and, as long as it upholds the best interests of the child standard, the changes are likely honored and made legally binding as part of the parents’ child custody arrangement.
In the more likely case that one parent does not agree to the relocation, which often happens when the relocating parent has sole custody of the children. It is then up to the judge to make a decision as to whether or not the relocation should be approved. The parent making the request for relocation carries the burden of proof and needs to convince the judge that the relocation is necessary for a number of reasons. Some of the factors that the judge considers include:
- Why the parent is requesting to relocate
- What proposed benefits the children will see from the relocation, such as:
- Better educational opportunities
- Better social opportunities
- Closer proximity to important people in their lives
- Better employment opportunities for the parent
- Why the other parent is protesting the relocation
- The relationship dynamics between the children and the requesting parent
- The relationship dynamics between the children and the protesting parent
- How the child custody arrangement will change based on the relocation
- How transportation of the children between homes will change with one parent moving to a new location
- Alternative communication methods to be used between the children and the protesting parent, how much those communication methods cost and who will be responsible for paying for them
- How the relocation will emotionally and mentally affect the children involved
- Depending on the children’s ages and maturity level, what their preferences are in terms of relocation