If you hope to be granted residential custody of your child, it is important to understand the factors the court will look at and work with your attorney to build a convincing case.
Types of Custody
There are several custody terms that may be involved in your case:
- Sole legal custody: One parent has the authority to make decisions about the child.
- Joint legal custody: Both parents share decision-making authority about the child.
- Sole physical custody: The child resides only with one parent and has no contact with the other parent.
- Joint physical custody: The parents share time with the child as determined by the court.
- Residential custody: The child’s primary home is designated as being with one parent, where they will spend most of their time. The other parent will have parenting time (visitation).
If you are seeking residential custody, you are asking the court to name your home as the child’s primary residence. The court will also determine legal custody, deciding whether you and the other parent will share decision-making authority or whether it will be awarded to just one parent.
How Custody is Determined in New York
New York state courts decide custody matters based on what is in the child’s best interests. To be granted residential custody, you must show the court it is in your child’s best interest to live with you most of the time. A best interests analysis is a complex evaluation and permits the court to consider the facts and circumstances of the case.
Factors the court evaluates include:
- Any history of domestic violence in the family or any order of protection relating to this
- Child abuse by either parent or allegations of child abuse
- Child care arrangements
- Child’s mental, emotional, physical, and educational needs
- Conditions in each home
- Each parent’s caretaking responsibilities for the child
- Each parent’s work schedule
- Educational opportunities each parent can offer the child
- History of substance abuse or addiction by either parent
- Mental and physical health of both parents
- Stability of each parent’s home life
- The child’s opinion about custody
- The child’s siblings and half-siblings and the child’s relationship with them
- The financial health of each parent
- The parents’ behavior and demeanor during the trial
- Whether either parent has tried or has interfered with the other parent’s access to the child
Build Your Case
Since there are so many factors the court may consider in a custody case, it is important to work closely with your attorney to build a case that will convince the court to award you residential custody.
Make a Witness List
Make a list of people who can testify about matters such as:
- Abuse of your child by the other parent
- The other parent’s lack of involvement with school or extracurricular activities
- The other parent’s lack of involvement with your child’s needs
- Unhealthy behavior by the other parent (substance abuse, domestic violence, anger issues, etc.)
- Your child’s reactions to the other parent
- Your child’s unique medical, mental, emotional, or educational needs
- Your good relationship with your child
- Your involvement with the school and extracurricular activities
- Your involvement with your child’s medical and educational needs
Gather Evidence
Provide your attorney with physical evidence that supports your case, such as:
- Photos or videos of abuse or injuries from abuse of yourself, your child, or anyone in the household
- Photos or videoes of your home and the other parent’s home showing that yours is a better environment
- Medical reports regarding your child’s conditions or needs
- Records of substance abuse by the other parent
- Educational reports regarding your child’s needs
- Photos, videos, or scrapbooks of time you spent with your child
- Journals or logs you have kept of time you have spent with your child as well as time spent managing things for your child
- Journals or logs indicating the time the other parent has spent with your child
- Notes, emails, voicemails, direct messages, texts, letters, and communications from your child, from you, and from the other parent that display information about the relationships
Create Lists
Take time to think about events, incidents, and situations that bolster your position as a residential parent and show that the other parent is not as good an option, such as:
- Arguments they initiated in front of your child
- Dangerous situations the other parent has placed your child in
- Events they failed to show up for
- Events you have attended that the other parent has not
- Lack of interest in or connection with your child and their life
- Promises they have broken to your child
- Your daily caregiving tasks for your child
Work with the Attorney for the Child
Most custody cases have an Attorney for the Child appointed to represent the child’s interests. This is an attorney who is specially trained in custody cases and approved by the state to fulfill this role. The AFC is treated as a party to the custody case and can present evidence, call witnesses, and cross-examine witnesses. The attorney for the child will meet with you, the other parent, and your child and may also talk to teachers, doctors, therapists, and other professionals who work with your child.
Although the attorney for the child acts as another party in the case, they have a lot of influence over the judge, who often considers their point of view with additional weight. You should establish a friendly relationship with the attorney for the child and work to get them on your side. Always be open, honest, and amicable with them and fully explain your reasoning for wanting residential custody. In most cases, emphasize that you want to support a relationship between your child and the other parent because it’s important for your child to continue to have two parents.
Experts
Your attorney may suggest that experts are hired to add credence to your case. Experts needed in your case could include:
- Adult psychologist: A psychologist could evaluate both parents’ mental health and make a recommendation about who is best suited to have custody
- Custody evaluator: Trained professionals who carefully evaluate the custody issue and make a recommendation
- Child psychologist: A child psychologist who has not been treating your child may be brought in to evaluate your child’s emotional needs and the type of custody situation that would benefit them
Winning residential custody requires presenting a comprehensive case that strikes a delicate balance. The court needs to see that you are the most responsible parent and the most involved with your child’s day-to-day life. They should also see that you understand the other parent’s shortcomings or lack of relationship with your child. At the same time, it is important not to unnecessarily demonize the other parent and show the court you fully support your child in continuing to have a healthy relationship with the other parent.