How to Get Full Custody in a New York Divorce
Proving that sole custody is in the best interests of your children
Very few states are willing to award sole custody to the better of two good parents. New York law presumes that frequent, continuous contact with both parents is in the best interest of a child, unless one party shows that the other parent presents a specific risk. If you believe strongly that you should have sole physical and/or legal custody of your children, you must be prepared to demonstrate that your co-parent is unfit to handle their responsibility safely. At Bryan L. Salamone & Associates, P.C., we caution our clients to be realistic and not to enter into protracted custody litigation over a difference in parenting styles. However, when necessary to protect a child, we understand how advocate for full custody in a New York courts. If warranted by the circumstances, we take strong action to protect your children.
What would make a parent be considered unfit in New York?
An unfit parent is a mother or father who cannot care responsibly for a child and places the child’s safety, health, education or welfare in jeopardy. Allegations of unfitness do not require proof beyond a reasonable doubt, as the court’s primary duty in custody matters is to protect the child. Still, judges often seek ways to maintain some safe method of maintaining a parent-child bond, such as supervised visitation or an order requiring an unfit mother or father to take parenting classes.
Factors the New York court considers in deciding custody
The court may consider any factor it feels is relevant to the best interests of the child when one or both parents seek sole custody. Common factors used to decide these cases include:
- Age of parents — Unless one parent is severely limited physically or mentally, age is not much of a factor.
- Alcohol and drug use — DUI arrests, habitual drunkenness and the use of illicit drugs can disqualify a parent for custody.
- Availability — Parents must be present to supervise children. A demanding career, especially one that requires frequent travel, could make sole physical custody for the other parent more likely.
- Disability or poor physical health — A custodial parent must have the energy to perform parental duties.
- Domestic violence — A parent who has a criminal conviction for domestic violence, or who is the subject of an order of protection, might very likely be found unfit for custody.
- Finances of parents — This is rarely a factor since the court can balance any financial disparity with a child support order.
- Findings of child neglect or abuse — Substantiated allegations of neglect and abuse can support a determination of parental unfitness.
- Home environment — A custodial parent must provide a safe, healthy home for the children.
When parents disagree about sole or shared custody, it’s not always necessary to litigate the matter in court. Sometimes the fact that one parent has taken a strong position and is willing to go before a judge convinces the other party to come to the table and work out a voluntary custody agreement, even if it means an award of sole custody.
Improving your chances of gaining sole custody in New York
While courts typically favor joint custody when both parents are capable of raising their children safely, if you do believe that your former partner poses a risk, there are specific steps you can take to increase your odds of receiving sole custody, such as:
- Being involved in your child’s life — Engaging with your children and being aware of their interests and activities is important. You should know their teachers, coaches, friends, friends’ parents and doctors. Attending events such as parent-teacher conferences, games and recitals is an important way to demonstrate involvement.
- Following court orders — If you violate the terms of the temporary custody order, you can’t expect the court to look favorably on your attempt to establish sole custody. Work cooperatively with your co-parent and be supportive of their relationship with the children.
- Keeping clean — Avoid drug and alcohol abuse, as well as brushes with law enforcement. Refrain from social media postings that could show you in a bad light.
- Demonstrating responsibility — Create a stable environment for your children, where they can feel comfortable and safe. You might need to adjust your work schedule or outside interests to do this.
Above all, you should attempt to cultivate a loving relationship with your children by spending quality time with them, talking to them and being a dependable parent.
Do mothers get preference with full custody?
New York custody law is gender neutral, so courts should decide child custody matters based only on the parent’s ability to act as a primary caregiver to a child. Nevertheless, in many cases, the mother has been the primary caretaker, and judges sometimes place great value on maintaining a young person’s existing routine. However, if a father is available and not provably unfit, he should be entitled to liberal visitation and overnights with the children.
When can a child choose which parent to live with?
Children are never permitted to choose where to live until they turn 18. However, many judges will take a child’s preference into consideration, especially if the child is mature and presents good reasons for their preference.
Does full custody mean no visitation for the other spouse?
In most cases, the court will grant visitation to a noncustodial parent. Exceptions occur when the court decides that contact with the parent is not in the child’s best interest. If a parent is unfit, the court can deny visitation or restrict meetings to supervised visits.
Hire aggressive lawyers who fight custody battles to win. Don't delay. Call now.
Bryan L. Salamone & Associates, P.C. has a well-earned reputation for providing strong advocacy in tough child custody disputes. If you have concerns about your former partner’s reliability as a custodial parent, we can help. Please call us for a free initial consultation at 1.631.479.3839 or contact our office online.