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How to win custody of your child: 24 factors the court looks at

DIVORCE-CUSTODY TIPS FOR PARENTS

Divorce/custody tips: After a divorce has been filed, one of the first questions divorcing couples have is, how to win custody of the kids? How do you win custody? Good question. Parents often seek the advice of a divorce lawyer on the issue of winning the custody battle even before they begin divorce proceedings.

Precious little angel….how to win custody of her

Questions about divorce law as it relates to custody are often the first questions mother’s and father’s have. Each parent usually believes he or she has the right to custody and so and this is one of the first questions that typically come out of their mouths. “How can I win custody of my child?” These days, “father’s rights” groups more aggressive than ever in charting strategies for men who want custody of their children – even infants who, historically, have been handed over to their mother’s custody after a divorce. No more. That trend is changing and both moms and dads have almost an equal chance of winning custody. That is why is is such a highly charged area of divorce law.

There are no hard and fast rules for determining who will win custody. Custody of children is a tough, painful situation a lot of time because both parents have a right to raise their child. And children need both parents. That is why I advocate co-parenting wherever possible because custody fights/battles/cases can be brutal.

The proverbial custody battle has been the subject of numerous TV shows and movies. It’s a big issue, a big question in a divorce. And there are no hard and fast rules, only guidelines. Divorce law on this issue is case specific. But these are some of the factors the courts will consider. (They are from the New York courts but they are a good reference point for those in other states across the country, and even across the pond.) How do you stack up? Do you think you have what it takes to win custody of your child? Here are some of the things the court looks at in making a determination of who will win custody of the children:

1. Physical ability and fitness of each parent.

2. Mental ability and fitness of each parent (Russo v. Russo 257 AD 2d 926)

3. Child’s age

4.  Child’s physical and mental health (Cornelius C. v. Linda C 123 AD 2d 536)

5. Child’s special needs (Ocampa v. Jiminez 27 AD 3d 75)

6. Child’s preference (Eschbach v. Eschback 56 NY 2d 167)

7. Religion

8. Who has been the primary caretaker (Lenczycki v. Lencaycki  152 AD 2d 621)

9. Race

10. The sexual preference of each parent

11. Adultery and its impact upon children

12. Separation of siblings (Meyer v. Rudinger 285 AD 2d 714)

13. Locale of parents – stability of one home and/or relocation of parent (Kemp v. Kemp 19 AD 3d 748)

14. Spousal abuse (DRL sec. 240 (1)(a); Finkbeiner v. Finkbeiner 270 AD 2d 417)

15. Child abuse

16. Child’s refusal to be with one parent

17. Parent’s work schedule (Ebel v. Urlich 273 AD 2d 530)

18. Children’s schedule

19. The need for supervised visitation

20. Ability of custodial parent to support the child (Matter of Louse E.S. v. W. Stephen S. 64 NY 2d 946)

21. The willingness of one Parent to foster the child’s relationship with the other parent (Darla N. v. Christine N 289 AD 2d 783)

22. Prior criminal conduct of a parent (Russo v. Russo 257 AD 2d 926)

23. The presence of, and the children’s relationship with, a parent’s “significant other.” (Fairbanks V. Diehl 268 AD 2d 867)

24. Alcohol or drug abuse of one parent (Melvina H. V. James Lee W 269 AD 2d 186)

Source: State of New York Appellate Division, Supreme Court 2nd Judicial Department, Continuing Legal Education Law Guardian Program, 2007

Again, this is not formulaic. Many things can sway a judge in either direction. Ultimately, the courts will do what is in the best interest of the child, notwithstanding all these so called factors that they use to determine which parent will get custody. But the foregoing is a good starting point. Ask yourself honestly and objectively how you stack up. Then speak with your legal team to decide what is the best recourse for you if being the custodial parent is the bottom line for you, and if you want to win custody at all costs.

Follow us on twitter for updates and new posts and tips on how to win custody of your child(ren) www.twitter.com/divorcesaloon

Originally published March 22, 2009

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4 Responses to How to win custody of your child: 24 factors the court looks at

  1. Terri

    September 10, 2010 at 6:08 am

    The biggest factor, IMHO: which parent passes the ‘smell test’?

    Judges are supposed to make their decisions based on the law, and they often do, but they’re only human. I’ve always felt that many of them back their decisions up with the law only AFTER they’ve got a feel for who should have primary physical custody.

    What’s your experience with this, Jeannie?

    • Jeannie Goldstein

      September 10, 2010 at 9:01 am

      I’ve often wondered by they even have the statute. My experience is this experience is a free for all. Predictably unpredictable and sometimes even corrupt. But I’m a pessimist. But when I first started practicing I would go in with my books and all my quotes from all my case law and people looked at me askance, as if I was crazy. It’s a whole culture. Every court has its own culture, its own secret code of who will get what, who will do what. The lawyers who regularly practice in that court know the nuances, and they know which judge will do what. The judges know which lawyers will do what. Sometimes if a lawyer is an “outsider” his client is doomed….what is my experience, Terri? Don’t ask. And I won’t tell. But I think the whole family court system is more than just a little bit ugly. That is why I heavily encourage parents to try to work this out amongst themselves and eschew the system.

  2. matthewingham

    October 19, 2010 at 9:04 am

    I will have to agree with Terri. Judges usually make their initial decision based on their ‘feel’ for the case and for the Parties involved. Then, after they have made their decision, the think up a way to support their decision with law.

  3. Tulsa Divorce Attorney

    December 30, 2010 at 11:24 pm

    For additional information about winning the child custody issue in Oklahoma Divorce Court, take a look at my website…we have a lot of helpful information posted that is Oklahoma jurisdiction specific.

    (Sorry Admin, this is one of the few times that the content of your article compelled me to self promote…completely justified though :) )

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