Gene L. Grobstein

There are two parts to custody. One involves the right and responsibility to make decisions for a child (legal custody). The other involves where the child will live (residential or physical custody). The courts have jurisdiction over custody and visitation until a child is 18 years old.

In joint custody, the parents make major decisions about the child together. In sole custody, one parent makes the major decisions. Even where one parent has sole custody, the other parent often has the right to be informed, consulted, and to offer an opinion about the decision. Major decisions include religion, education, and health issues. Day-to-day decisions, such as the child’s daily routine, are made by the parent who is caring for the child at the time.

In most all cases, the courts favor and encourage a continuing relationship between the child and both parents. The courts generally will permit the other parent to have scheduled visits with the child.

No. The courts do not favor either parent in awarding custody. The misconception that gender is taken into account when deciding custody probably stems from the history of custody decision-making in this country. Historically, children were viewed as the property of their father and custody was not even an issue. Subsequently, children were viewed as needing primarily their mother’s care, and the “tender years” doctrine dictated that young children live with their mother. Today, a custody award is based on the best interests of the child.

The courts consider many factors including the following:

-which parent has been the primary care giver/nurturer of the child
- the parenting skills of each parent and their relative strengths and weaknesses including the ability of each parent to provide for any special needs of the child
-the mental and physical health of the parents
- whether there has been domestic violence in the family
- work schedules and child care plans of each parent
-the child’s interaction with brothers, sisters and members of the extended family
-the child’s wishes, depending on the age of the child
- the ability of each parent to cooperate with the other and to encourage a relationship with the other parent, when it is safe to do so
-if the parents are living separately, how the child is doing emotionally, socially and in school

Domestic violence is defined by the New York State Office for the Prevention of Domestic Violence as a “pattern of controlling and coercive behavior which can involve physical, sexual, economic emotional and psychological abuse”.
Domestic violence against either a parent or a child is considered in determining custody. Even where the violence was not committed in the presence of the child, it may still affect the child and its impact will be considered.

A law guardian is an attorney chosen by the court to represent the child in custody and visitation disputes. If the child is very young, the law guardian will tell the court what the law guardian thinks is in the best interest of the child. If the child is old enough, the law guardian will tell the court what the child wants.

A forensic evaluator is a psychiatrist or social worker chosen by the court. He/she gathers information about the family through interviews with the family members, testing and from people who know the family members or have provided treatment to them. After gathering this information, the evaluator sends a written report to the court. The evaluator may have to come to court to testify if there is a trial.

If the court determines that the parents have enough money to pay for these services, then the court will decide the amount that each parent will pay to the law guardian and the forensic evaluator. If the court determines that the parties do not have enough money, then the court may order that the government pay these fees.

No. The parents may resolve the dispute on their own. If they are unable to do so, they may ask that the court refer them to a mediation program if one is in place where they live. Without the involvement of the court, counsel and the parents may negotiate an agreement. They may also seek the aid of the law guardian. Sometimes, the recommendation of the forensic evaluator may form the basis of an agreement. The parents may also attend a parent education program. After completing the program, they may be able to reach an agreement based on the information that they learned. However, if the parties cannot reach an agreement, the court will make the determination after a trial.

The court may order supervised visitation, therapeutic supervised visitation, a neutral place of exchange, or monitored exchange, or monitored exchanges

Supervised visitation means that a parent cannot be alone with the child. The court chooses someone to supervise the parent’s visits with the child. The courts may order supervised visitation when there are serious concerns about a parent’s ability to behave properly with a child or where there has been domestic violence.

Therapeutic supervised visitation is when a mental health professional supervises the visits. The mental health professional will intervene during the visitation, when necessary, to improve the parenting skills of the parent and may provide the parent with information about child development and effective parenting strategies and techniques.

A neutral place of exchange is a safe location where a child goes from one parent to the other for visitation. It may be a public location like a mall, library or police station where both parents are present. It may be the child’s school where a parent goes to pick up the child at the end of the school day.

A monitored transition means that the exchange of the child from one parent to the other will take place with a third party present to maintain safety during the exchange and to maintain a calm environment for the child.