Divorce and Custody in New York: Who will get custody?
In determining who will be awarded custody of under-age children, the court will look to what is in the child’s “best interest.” What does that mean? Well, it means different things to different people but basically, the questions asked are: who can provide for the child’s emotional and intellectual development? What is the quality of the home environment that the child will live in? Which parent can provide the best guidance for the child? Where does the child want to be – with which parent? What is the most “stable” arrangement for the child? What is the relationship between the parent and the child?
Totality of circumstances
It is the totality of circumstances that determine what is in the child’s best interest and who is better suited for custody.
Custody is often awarded to the primary caretaker. The primary caretaker is usually the parent who usually stays home with the children and provides for their care in the following way: prepares and plans meals, bathe children before school or activities, takes care of clothes, shops for children’s clothes, does the laundry for the children, takes the child to the physician for check ups, arranges play dates, takes the child to after school activities, arranges child care, makes religious decisions pertaining to the child, reads bedtime stories to the child at night….
Normally the court will not want to disrupt a child’s life by removing the child from a parent who is “fit” and placing the child with the other parent. The court does not want to subject the child to “roller coaster custody.”
A home environment that is clean, safe and nurturing, and that has enough financial stability to properly care for the child is usually the one the court will find is in the child’s best interest. But just because one parent is more affluent than the other does not mean that this fact by itself will result in custody being given to that parent. That is why the child support laws exist. So that if a parent is more affluent, but less fit to have custody, custody will go to the other parent and the financial constraints will be taken away with those child support checks coming in.
Drugs and Alcohol
Excessive use and abuse of alcohol or drugs by one parent that is current will likely cause the court to order custody to the other parent. But past drug use is not necessarily a bar to custody.
A parent who is hospitalized for mental illness will not get custody of the children under normal circumstances, if that illness is ongoing and not in the distant past.