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Protecting your rights and the LEGAL rights of your child in New York
Divorce is a challenging life event, no matter the circumstances or reasons behind the split. When you and your partner have children, matters of child custody can make even the most amicable of divorces emotionally charged. Naturally both parents want as much time with their children as possible, and sometimes you may need help coming up with a mutually agreeable custody agreement.
The Westchester divorce attorneys at Berkman Bottger Newman & Schein LLP are skilled in all aspects of family law, and can help you work through any child custody disputes as well as draft an agreement that addresses the best interests of your child. Get in touch with us today for informed legal guidance in New York.
How does child custody in Westchester work?
Child custody means the rights and responsibilities a parent has regarding their child’s well-being (both physical and mental), medical care, education, and socialization.
Most non-attorneys don’t realize that in New York, “custody” of a child is split in two parts: residential and legal. Residential custody is exactly what it sounds like: where the child primarily resides. Legal custody refers to the ability to make major decisions for the child, typically decisions that are educational, medical, or religious in nature.
Final custody arrangements can take many different forms and have various aspects to them, such as:
- Joint residential custody. Here, parents will equally share parenting time, and the children will live with both parents. The actual parenting schedule can work many different ways. Some parents will find a week-on, week-off schedule works best. For others, alternating weekends and splitting the week in half works better.
- Primary residential custody. When a parent has “primary residential custody,” the child or children live primarily with that parent. Again, the parenting schedule is subject to change, either by the parties or the judge. A fairly common schedule gives the non-custodial parent parenting time on alternating weekends, and one day a week. In other cases, there may be issues with a parent’s ability to have any overnight visitation at all. Every case is different.
- Legal custody. Legal custody can be held by one or both parents. Whoever has legal custody has the right to make important decisions about the child’s life, including educational, medical, or religious matters. Many custody arrangements allow one parent to make the final decision, after consultation with the other parent. Sometimes, a third party, like a doctor or parenting coordinator, will weigh in to help break “tie votes” between the parties.
When parents can work out their child custody issues on their own, they can design their own visitation and custody schedule with the help of experienced divorce attorneys, who can submit the schedule for approval by the court. If you and your co-parent are in dispute, however, the court may have to decide for you. Our Westchester child custody lawyers can protect your rights and fight for you and your children.
Our priority – and the court’s – is the best interests of your child.
Who will get custody of the children in a divorce?
There is no standard answer to this question unless there is a written agreement or court order in place. At the beginning of the process, both parents have equal rights to custody. The law gives no initial preference to either parent and takes primarily the child’s best interests into account when determining custody and visitation.
A divorce attorney for the children may be appointed to represent their interests. However, except in extreme circumstances, your children will not have to provide testimony or appear in court. The Westchester family law attorneys at Berkman Bottger Newman & Schein LLP keep you informed and guide you through the process with compassion.
What factors determine child custody?
New York courts take a variety of factors into account when determining child custody; however, they do not give preference or prejudice regarding gender or marital status. These factors can include the parents’:
- Availability to the child
- Caretaking ability
- Financial situation and earning potential
- Home environment
- Physical and mental health
- The ability of a parent to cooperate and co-parent
Additionally, the court considers the child’s relationship with their other siblings, and if a custody decision would negatively affect that relationship. Your child may also state their preference to the court, if they are old enough to express it. Any history of domestic violence will also affect the court’s decision.
Does NY Favor Mothers in Custody Cases?
The short answer is no. In New York, the law does not favor either mothers or fathers in child custody cases. Instead, the court will award custody to the parent who can best provide for the child's physical, emotional, and educational needs.
The judge will consider several factors when making a custody determination, including the child's wishes, the parent's parenting skills, the parent's ability to cooperate, and the child's living arrangements.
The court will also consider the child's age and developmental stage. In the past, New York law did favor mothers in child custody cases. However, this change to this law occurred law in 1973. Since then, the law has been gender-neutral.
Do I have to go to court to resolve my Westchester child custody issues?
New York, along with the rest of the country, puts the best interests of the child first in child custody cases. Specifically, the “child's health and safety shall be the paramount concerns.” If you and your co-parent are unable to come to agreement but do not want to go to court, you may be interested in mediation.
Our Westchester mediation attorneys offer an out-of-court alternative to designing an agreeable child custody plan (also called a “parenting plan”). We often find mediation produces more successful arrangements, as co-parents work together with a mediator to build a mutually beneficial parenting plan. Further, you can do this in private, out of the public eye.
Can I modify my child custody order?
Yes. A child custody agreement is not permanent. However, it is also not something that can be changed on a whim or on a regular basis. You may be eligible for order modification when one parent’s, or the child’s, circumstances have significantly and unexpectedly changed. Examples of significant changes in circumstances can include an increase in a child’s medical or emotional needs, if a parent becomes disabled, or if a parent has refused to follow a prior custody order.
Requests for order modifications must go through the court, and our attorneys can help you with this process. Child custody matters go through either the Family Courts of Westchester County, or the Westchester Supreme Court system, which includes White Plains, Yonkers, and New Rochelle.
Can I get emergency custody of my child?
There are several scenarios where a parent may be able to seek temporary and emergency custody of a child:
- If you have reason to believe the other parent is going to relocate with your child without your or the court’s consent
- If the other parent is abusing or neglecting your child
- If your child is in imminent danger under the other parent’s care
Our Westchester attorneys can help you seek temporary emergency custody when your child’s welfare is in danger. We will protect your child and approach the court as quickly as possible on your behalf.
CREATIVE SOLUTIONS TO DIFFICULT & COMPLEX PROBLEMS
All families and marriages are unique - our attorneys take the time to listen to our clients to fully understand the circumstances of their case. Only then do we advise the best legal option for their goals.
PROMPT RESPONSES TO INDIVIDUAL NEEDS AND INQUIRES
Divorce is a time of transition. We understand the emotional and financial stress that clients experience during the divorce process – from day one our team ensures that we provide our clients with prompt feedback so that they are updated on their case every step of the way.
CHOICES AND OPTIONS TAILORED TO EACH CASE
We are one of the only Manhattan divorce law firms offering all three options for divorce: litigation/negotiation, collaborative law, and mediation - providing custom strategies and solutions for our clients.
INDUSTRY THOUGHT LEADERS DEDICATED TO YOUR SUCCESS
Our attorneys provide frequent expert legal commentary for national media outlets and have been quoted in numerous publications including Fox's Business, NBC News, ABC News, CBS News and many more.
At Berkman Bottger Newman & Schein LLP, we understand the intricacies behind successful child custody agreements. Our attorneys are ready to protect your rights as a parent and the rights of your child. Schedule a consultation today by calling us at (212) 466-6015 or contacting us online. We have law offices in White Plains for your convenience.