Custody in a divorce case is a category under which decisions about the welfare and upbringing of minor children are litigated and enforced by a family court. Generally speaking, there are two broad types of custody. Legal custody is when one or both parents are awarded the right to make decisions about a child’s education, religious affiliations, food and clothing, extracurricular activities, participation in sports or membership organizations and medical care. Physical custody gives a parent the right to have a child live with them, usually in the same home.
Legal and physical custody can be shared between both parents or even between parents and other relatives like grandparents, depending on the ultimate decision of a family court judge. Custody arrangements can change over time, and occasionally a parent can lose custody if they do something abusive or neglect their parental duties.
Custody arrangements are adjudicated and justified based on what a court considers to be the best interests of the child. This is somewhat different from other kinds of legal disputes. In most cases, the decision of the court rests on its interpretation of whether a plaintiff or defendant has a better argument or better evidence. In a custody matter, the decision instead rests on the interests of a person who isn’t even a party to the case at all.
The burden of any custody order is likely to be borne by the parents rather than the child on the grounds that stress and inconvenience to a child should not be placed in order to make circumstances easier for one or more of the litigants. It is not the child, says the court, whose life should be negatively impacted by circumstances they can’t control.
Whether parents get legal or physical custody is a function of their suitability as a parent, and any arrangements favorable to the child. For example, physical custody is more likely to be awarded to a parent living close to a child’s school and the home where they were most recently living rather than a parent that has moved out of state. Legal custody is more likely awarded to parents that demonstrate responsibility rather than those who might be facing legal problems of their own or who cannot support their children.
Abusive parents or those who have neglected their children in the past do not have very good prospects for either obtaining or sharing custody of their children, as the other parent will point out that living with or being under the influence of an abusive and neglectful adult isn’t in any child’s best interests.
In the rare cases where both parents have shirked their responsibilities and have demonstrated a lack of capacity to care for any of their children, it is up to the court to step in and provide where parents either cannot or will not. In many of these cases, a judge will order the appointment of a Guardian Ad Litem. Literally “for this suit” or “for this occasion” Ad Litem Guardianship is established by the court for purposes of helping a child or family of children navigate a legal case in which they cannot rely on the care or attention of their parents.
A Guardian Ad Litem is empowered by the court to make decisions on a child’s behalf, such as obtaining legal counsel, finding other family members who may be able to care for that child and so forth. In such cases, the children may find themselves at odds with their own parents, and may have to work out their own custody arrangements over one or more of their parents’ objections.
A key benefit to the appointment of a Guardian Ad Litem is the elevation of the children in a divorce case to the station of a recognized party to the case. Even though children only rarely have standing on their own, once a Guardian is appointed, they can obtain legal counsel and begin the process of making their own motions and arguments in favor of arrangements suited to them regardless of the wishes of their parents. In many such cases, older children end up emancipated and on their own legally.
Custody arrangements can be among the most highly contested legal disputes. The impracticality of making completely subjective decisions based on what are almost exclusively emotional arguments can be a major burden on a court. Few such decisions produce any relief for any of the parties. Nevertheless, the overriding purpose of a court in making certain the best interests of the children are preserved must prevail.
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