Child Custody: Managing Expectations and Guiding Motivations
It’s not uncommon for people to seek out an attorney in order to obtain sole physical and/or legal custody over their children. In extreme cases, parties may seek to have their “co-parent” completely excluded from his or her children’s lives. At times, these requests are made based on legitimate fears of abuse or neglect. However, more often than not, they are rooted in anger and retaliation. A skilled attorney is there to listen to that person’s rationale and apply his or her knowledge of the legal system to assess whether the potential client’s request is realistic or even possible.
Courts take the position that parties have knowingly and willingly made the decision to become parents together. Judges take the parties just as they are at the time that they first appear before the Court. They also expect that parties represented by counsel have been advised of the laws and are prepared to base their requests on the reality of those laws. Decisions made by the Court will always be based on what is best for the children and not the feelings or interests of the parties.
In New York, custody is two-fold. Legal custody refers to who makes major decisions on behalf of the children, while physical custody refers to where the children predominantly reside. New York Courts expect parties to share legal custody of the children, absent some substantial reason why the parties are unable to communicate. For example, if there is a history of domestic violence and/or an order of protection limiting the parties’ contact, this may be a reason to grant one party decision-making authority. However, the parties’ basic inability to get along is not enough to warrant sole legal custody, as the Court expects the parties to rise above their difficulties for the greater good of the children.
When it comes to physical custody, New York Court’s prefer liberal parenting schedules as well. In fact, courts within the five boroughs favor 50/50 arrangements whenever possible. Surely, if the parties reside far away from each other or have work schedules that make it difficult or impossible to get children back and forth to school and activities, a shared arrangement is not possible. In those circumstances, Judges expect the parties to arrange for as much time with each parent as feasible. Courts have been guided in their perspectives by studies that show that “children who spend at least 35 percent time with each parent, rather than live with one and visit the other, have better relationships with their fathers and mothers and do better academically, socially, and psychologically.”
Prospective clients who seek to have the other parent’s right terminated must be advised that doing so is nearly impossible and most certainly not advisable. Absent a finding by Child Services (ACS or CPS) of extreme, ongoing abuse or neglect, the Court will not simply terminate a parent’s rights. According to the study Parenting Matters: Supporting Parents of Children Ages 0-8, conducted by the National Academy of Sciences, Engineering and Medicine, “the overwhelming weight of scientific research demonstrates that children do better with two parents involved in their lives.” Even if a parent is inactive in a child’s life, the Court will generally leave the door open for a relationship in the future.
Second, terminating a parent’s rights also terminates their responsibility to provide for their children financially. Even if a parent is willing or capable of receiving no financial support from their co-parent, it is not a decision that parent can make alone. If there is any chance that a child will become reliant on state-funded financial assistance the Court will not entertain the idea of parental termination, every parent has a legal obligation to provide financial support even if he or she chooses to remain physically removed from the children.
Attorneys often find themselves in the tough position of providing prospective client’s with guidance they do not want to hear. However, a litigation mindset requires avoiding applications motivated by hurt and anger, and instead guided by what will truly nurture the growth of children into productive and well-adjusted adults. The purpose of hiring an attorney is not to manipulate the legal system, but rather to utilize their knowledge of the legal system to navigate the legal system smoothly. Failing to do so, only serves to tarnish your credibility with the Judge, delay proceedings and drive up attorney fees.
1: https://www.businessinsider.com/children-should-spend-time-with-each-parent-after-divorce-2017-5
2: More detailed laws regarding termination of parental rights in New York State can be found in the Family Court Act, Secs. 611-634