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Who receives custody of the children in a divorce?

When you begin a divorce, the first question that’s probably on your mind is who receives custody of the children in a divorce. Your children are what’s most important to you. It’s not surprising that custody of the children is the biggest question in a divorce. Here’s what you need to know about who receives custody of the children in a divorce:

Child custody in New York depends on the best interests of the children

The best interests of the children is what matters most when the court determines custody. The court looks at the situation involving both parents and all of the circumstances involved in order to decide what circumstance benefits the children the most. A child custody decision can be quite generic, or it can be very detailed if it benefits the children. The court may award joint physical custody, but there’s no requirement that the court award joint custody even if both parents are basically fit to care for the children.

What does the court consider when it determines custody?

Although the court that hears the case can look at the entire circumstances in order to determine what’s in the best interests of the children, the courts have some guidance. New York law lists some factors that the court can consider when they make a custody evaluation. These factors include:

  • Who has spent the most time caregiving for the child’s needs up until this point
  • Each parent’s respective parenting skills
  • The ability of each parent to provide for the needs of the child considering any special needs that the child may have
  • Physical health of each party
  • Mental health of each party
  • Domestic violence or other forms of abuse
  • Substance abuse that interferes with a parent’s ability to care for the child and be a positive role model
  • When each parent is available to spend time with the child
  • The burden of travel on the child and the distance between parents
  • Relationships with extended family members
  • The ability of each parent to foster a relationship between the child and the other parent
  • Any other relevant factor to the best interests of the children

No one factor determines child custody alone. The court doesn’t simply go through the list and total up all of the points in order to determine who wins child custody. Rather, the court must decide how much to weigh each factor and for what reasons.

What is legal and physical custody in New York?

To talk about who gets custody of the children in New York, it’s important to understand the difference between physical and legal custody. When you talk about who gets custody in a New York divorce, you must consider that the court may not make the same decision for legal and physical custody. The court may award legal custody to both parents and physical custody to only one parent.

Legal custody allows a parent to share in decision making for the child. If the court orders legal custody to only one parent, that parent makes the significant decisions for the child throughout their childhood including choice of school and major medical decisions. The court can also order the parents to share in this decision making. The courts freely award joint legal custody if both parents are qualified.

On the other hand, even if both parents are qualified to have physical custody of the children, the court may or may not decide that joint custody is in the children’s best interests. Physical custody is who has the responsibility of caring for the child on a day-to-day basis. The court can make physical custody equal or almost equal, or they can order one parent to provide care for the child the majority of the time. Usually, the court orders at least some parenting time to each parent, but in extreme cases, the court may require supervision or place conditions on parenting time for the child’s safety.

How to decide custody in a New York divorce case

The court does a holistic evaluation in order to determine who gets child custody in a New York divorce. Child custody determinations don’t depend on any one factor, but rather the entire circumstances are important. An experienced New York City divorce lawyer can help you evaluate your case for custody and build a strong case that protects your interests and the interests of your children.

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