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What factors determine custody and visitation?

Divorcing parents with pending custody cases in the New York family courts are often anxious and worried about the issues that can factor into a court's decision on the custody of their child(ren). Going into court equipped with knowledge often alleviates some of that anxiety.

Custody is defined as the legal right of the parent(s) to exert control over their offspring's upbringing. It boils down to basic parenting. Even parents who aren't granted custody rights may still be allowed visitation with their children and have a legal right to pursue both when divorcing.

Two types of custody are physical and legal. Physical custody determines with which parent the child(ren) shall live for the greater portion of the time. That parent is often referred to as the primary caretaker or custodial parent. Legal custody means that the parent has rights to make major decisions regarding their children, which may include the medical care they receive, where they go to school and the type of religious instruction they pursue.

Many factors come into play when the judge is determining which parent will have custody. The best interest of the child is the guiding factor, and may be influenced by the following:

-- The fitness of both parents, e.g., are they working and in good mental and physical health? Is their home life stable or do they lead a transient lifestyle? Do they exercise good judgment?

-- Which parent has been the primary caretaker thus far?

-- Will the child be separated from siblings by a custody ruling?

-- Where do the children live now? For how long have they lived there?

-- Can both parents provide intellectual and emotional support for the child?

-- In the case of older children, with which parent would the child prefer to live?

-- Which parent allows interaction between the other parent and the child without attempting to alienate the two?

-- Has either parent been abusive to either each other or the children? A prior history of domestic violence would weigh heavily against a parent in a child custody case.

A frank conversation with their divorce attorney can assist in clarifying custody matters and help parents present their best image to the court as they strive to be awarded custody of their children.

Source:, "Divorce Information & Frequently Asked Questions" Sep. 18, 2014

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