Matrimonial and Family Law Blog

Sunday, March 26, 2017

Will I lose custody of my child after divorce?

If you are a resident of New York seeking a divorce, it’s only natural to wonder what it will mean for your child. Will you still get custody over them or will your spouse get custody?

Not all divorces are the same. However, the issues for determination are usually similar: child custody, child support and property division. These issues can either be determined by the divorcing spouses or the courts, as New York law recognizes two types of divorce: uncontested divorce and contested divorce.

What Is Uncontested Divorce?

In uncontested divorce, both you and your spouse agree the marriage is beyond repair and that you should divorce. You agree on how to share custody over your children, who will provide child support, who will get visitation and for how long, and how to divide property.

In this divorce, you and your spouse agree on a child custody formula without the court’s intervention. After settling all pending issues, all you and your partner have to do is file your divorce papers with the New York Supreme Court for legal granting.

Where the two of you are unable to agree, even on one issue, the divorce will be considered contested.

What Is A Contested Divorce?

A contested divorce is one where your spouse objects to the divorce or where both you and your spouse fail to agree on child custody, child support or property division by the first filing of divorce papers. If you and your spouse disagree on child custody, the court will have to step in and make a proper determination.

How Courts Determine Child Custody

The courts determine custody according to the best interests of the child. This means that the court will put itself in the shoes of your child to determine what will be best for him/her physically and emotionally. It will be guided by such factors as:

  • The age of your child
  • The health of your child
  • The social and developmental needs of your child
  • Where your child currently lives
  • Where your child’s siblings live
  • Each spouse’s employment status
  • Each spouse’s ability to care for your child

After considering all these, the court will award two parts of custody:  physical custody and legal custody.

Physical custody concerns who will have actual supervision and primary care over your child. It concerns who your child will live with. If you get physical custody, your spouse will get visitation and vice versa.

Legal custody on the other hand concerns who has authority to make decisions concerning the general welfare, education, health and religious upbringing of the child.

While courts tilt toward having both parents play an active role in the child’s life, practicality may render that impossible. Therefore, the court may give one parent sole physical and legal custody, or give joint physical and legal custody to both parents, or structure custody uniquely with regard to prevailing circumstances.

Divorce is a complex process where the courts look at various aspects in deciding delicate family matters such as custody. Before deciding to file for divorce, call the law offices of Gassman Baiamonte Betts, PC today at 516.228.9181.


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