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Joint or sole child custody is to be determined according to the best interests of the child. Neither parent is entitled to a preference. There are no factors specified in the statute. [Consolidated Laws of New York Annotated; Domestic Relations Law, Volume 8, Section 240 and New York Case Law].
At the time of separation, the temporary custody arrangements might very well be assumed by the two parents. However, it is essential that the issues related are thoroughly discussed in order to successfully reach a binding and lasting mutual agreement.
Residency, legal guardianship, and visitation serve as the foundation issues on which the legal and physical custody rights are awarded. The law typically does not play a role in temporary custody arrangements, interceding only when one spouse is deemed unsuitable, usually on grounds of alcoholism or abusiveness, and only after the respective attorney files a petition with the court. In other words, it is usually in the interest of common good to come to a satisfactory agreement, to cooperate with the estranged spouse, and to provide convenient visitation.
It should not be taken for granted that the final legal custody arrangements awarded by the court will be the same as the temporary custody.
To ensure the best possible outcome for the child, divorce counseling for the entire family is highly recommended. Counseling helps prevent a child from becoming a manipulative pawn or the inappropriate subject and/or source of any arguments. Most often a child views the parents as equals, and the change in relationships as a result of the divorce process can be emotionally devastating. Remember, the child is the most vulnerable person in the divorce action, and unfortunately, the legal system does not completely protect this precious commodity.
Awards a parent or both parents the right to make legal decisions for the child regarding education, health care, religion, and his or her
Sole Legal Custody
When only one parent holds the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare.
Joint Legal Custody
When both parents hold the right to make legal decisions for the child regarding education, health care, religion, and his or her general
welfare, without either parent having superior rights. The most common form of joint legal custody designates one parent as having primary residential (i.e. physical) custody.
Currently, in most states, the courts will favor joint legal custody in situations where the parents have the ability to cooperate with one another in terms of making decisions that are in "the best interests of the child". Manydivorcing parents do work very hard towards achieving this goal.
Joint custody is definitely not for everyone and can only come about as a result of rational decision-making process focused on the past roles and future expectations of the parents.
Defines and declares the child's residency.
Sole Physical Custody
When the child lives with one parent and the other has specific visitation rights.
Joint Physical Custody
When a child is able to reside with each parent for a substantial amount of time during the course of a calendar year. The arrangement does not have to be split 50-50, but it does require some consistent plan or schedule. This type of custody arrangement is not very common, for it is rare when this type of arrangement is found to be best for a child.
To plan a practical way to care for the child, with each parent pursuing the responsibilities they have had in the past.
Where to begin?
A frank discussion of traditional influences exercised in the past by each parent would be the best place to start. If the discussion never
amounts to anything more than exchanging volleys of "I always did this, you never did that", in the end the entire purpose of the conversation will be defeated. Each parent needs to acknowledge the other's contributions made in rearing the child.
It is important to give proper credit where credit is due. In short, nothing less than a positive atmosphere should prevail.
The entire purpose of the conversation is to hopefully find the answer to the most important question, what custody arrangements are in "the circumstances should the focus ever be allowed to deviate from a child's best interest.
In order to ease the parent's burden, it is often suggested that counseling be sought and/or books be read concerning child custody issues and disputes.
How Will The Child Be Reared?
At this point a plan should be drafted to make certain that parties have communicated clearly. This will eliminate any lingering or potential misunderstandings that may arise in the future.
Feelings of competitiveness or selfishness are not unnatural, but must not be allowed to influence any important decisions that are made. Seeking the advice of a good friend or a counselor are two avenues available to guard against these very human emotions. Proper custody arrangements are for the child's benefit, never for that of the parents!
Who Will Have Custody?
Once a plan has been mutually agreed upon, the question of custody arrangements should fall into line. There are many different types of child custody, both legal and physical, so there are a wide variety of options available to deal with all situations. If you plan to obtain joint custody it is vital that both parties be very flexible, and always take the future into consideration.
When custodial agreement cannot be reached between the two parties prior to the trial date, a great deal of preparation may be required by the client and the attorney in order to effectively petition the court for custodial rights.
It is very common to seek the professional opinion and testimony of a counselor or therapist that is capable and qualified to perform child evaluations. The evaluator will study the behavior and emotions of the family relationships, and testify in court or at a deposition to explain his or her conclusions.
The members of the family should be aware of the differences between the distinctive roles of the counselor and the evaluator. The evaluator merely studies the family, where as the counselor not only evaluates, but in fact, is charged with the task of providing extensive advice.
An evaluation should never be sought without prior and full consent of both parties. Any subsequent evaluation should also be inclusive of both parents. The evaluation is to determine if a strong, happy, and healthy relationship exists between the child and the parent.
What to Expect from a Quality Custody Evaluation:
There should be a mutual agreement on both sides to have an evaluation conducted. To emphasize the importance of this decision, the
commitment should be backed by the signature of each person involved.
One side should never be observed and/or evaluated without the other one present, unless previously notified and authorized.
The child should be observed and evaluated on how he or she acts around each parent individually and collectively. The child may also be interviewed privately, but age and maturity always plays a vital role in this decision.
The evaluator should visit the homes of each parent at a time which would best exemplify the typical family atmosphere. While this would not be a surprise visit, neither should it be coordinated or rehearsed. The child must be present at the residence for at least part of the visit.
The evaluator should inquire about contacting teachers, doctors, baby-sitters, or any other people who have had a fairly close relationship with the child. These people should be called and considered for an interview.
The evaluator should deliver reports to each party concurrently, and a session should be made available in which each parent can address any questions as well as receive information about the child and the family relationships.
New York: Child's Bill of Rights
The judicial system in each state considers numerous factors in arriving at a final and proper child custody arrangement. After reviewing all of these factors, the Wisconsin Supreme Court devised a guideline for a child's rights. These basic rights are upheld in all 50 states:
The right to:
A continuing relationship with both parents.
Be treated not as a piece of property, but as a human being recognized to have unique feelings, ideas, and desires consistent with that of an individual.
Continuing care and proper guidance from each parent.
Not to be unduly influenced by either parent to view the other parent differently.
Express love, friendship, and respect for both parents: freedom from having to hide those stated emotions or made to be ashamed of such.
An explanation that the impending action of divorce was in no way caused by the child's actions.
Not to be the subject and/or source of any and all arguments.
Continuing, honest feedback with respect to the divorce process and its impact on the changing relationships of the family.
Maintain regular contact with both parents and a clear explanation for any change in plans and/or cancellations.
Enjoy a pleasurable relationship with both parents, never to be employed as a manipulative bargaining tool.
Life After Divorce
The obligation of being a parent does not end after a divorce. It is extremely important to understand that the bond of marriage is completely different from that of parents. This is the most common down fall in today’s society, as a dissolution of marriage takes place so does that of parenting.
To avoid difficulty in sharing parenthood after a divorce try to follow these basic rules:
Address situations with business-like behavior. If at any time a conversation becomes a little too personal, it might be wise to continue it on a later date.
Respect and encourage the child's relationship with the other parent.
Schedule regular appointments with the ex-spouse to discuss parenting issues.
Make no assumptions on past behavior.
Attempt to express and/or show appreciation towards one another as even the simplest comment or action can create a stronger and more effective partnership.
Never intentionally break or skip appointments. If one can't be kept, be immediately forthright and honest.
Do not make individual decisions.
Be open minded.
Remember the goals and recognize the benefits as they arise.
If the spouses reside in different states, or the family has recently moved to another state, the question of which specific state has the proper authority and jurisdiction to hear a child custody case might arise. The Uniform Child Custody Jurisdiction Act has established a uniform lawthat all 50 states are required to abide by. This legislation was passed in order to resolve these issues, which has helped prevent the problems of child-napping by parents who are dissatisfied with a particular state's decision.
In the past it was not uncommon for a parent who has lost a custody battle to take the child across state lines in an attempt to have another state's court award new custody arrangements. A set of standardized guidelines have been established to evaluate which specific state should have sole power over making the custody decisions, so presently there is seldom a dispute between states regarding custodial jurisdiction.
If a non-custodial parent snatches a child, at which time you are unable to or feel unsafe to go where he or she is living to retrieve the child, talk to your attorney and if need be file an immediate petition for contempt of court. This is "Child-napping," which is subject to severe penalties.
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