When we reach TV or movies, custody seems to always be determined by who is “unfit”. In real life, custody is not so black and white. In New York, the standard to determine custody is what is in the “best interests” of the child.

“In conducting a best interests analysis, courts must consider a variety of factors, including the quality of the parents’ respective home environments, the need for stability in the child’s life, each parent’s willingness to promote a positive relationship between the child and the other parent and each parent’s past performance, relative fitness and ability to provide for the child’s intellectual and emotional development and overall well-being” . The Court went on to say: Further, in “determining the child’s best interests, Family Court ‘must . . . consider the effect of domestic violence . . . when the allegations of domestic violence are proven by a preponderance of the evidence'”.
In the Aimee case, the parents had joint legal and physical custody of their [now] 12 year old daughter . Both parents sought to modify custody, and after a trial, the Father was awarded sole legal and primary physical custody. What happened? The court needed to find that there was a “change in circumstances” so that the best interest of the child would be served by a change in the custodial arrangement.
While it was found that the Father had acted in an “inappropriate and menacing manner toward the mother and others” and described himself as a “hothead”, it was found that the mother had instigated many of the parties’ arguments and that she could be aggressive and assaultive. Concerns were raised regarding the mother’s substance abuse and mental health. She left the child without proper supervision, was unemployed for a significant length of time, and did not have stable housing or a working vehicle.
While the Father was found to be “overbearing, controlling and disrespectful”, he provided appropriate care for the child, was sober, had a steady job and suitable housing.
Courts must look at many factors when deciding custody and while a parent may be “fit”, she may not be the best choice. While this may seem obvious, factors such as employment, housing, sobriety, and anger management cannot be overstated as to their importance.
Another significant factor is the ability of the parents to communicate effectively with each other Even in the happiest of homes, parents will differ as to parenting styles, including discipline, schooling, medical treatment, and religious upbringing. While an intact family is “forced” to reach a consensus with each other, when parents live apart it is often difficult to reach a middle ground. If you and your co-parent cannot do this, seeking professional help such as a counselor or social worker can be invaluable. Not only will it save you a lot of time and expense in court, it will actually do your children good.

July 2019 Margaret Tabak

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