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CHILD CUSTODY
- FAMILY COURT OR SUPREME COURT
Custody
Child custody may become an issue in several different settings. The most
common custody awards are made as incidental relief in a divorce action as
well as through a petition, an order to show cause or what is generically
called a writ of habeas corpus.
Both the Supreme Court and the Family Court have jurisdiction to determine
custody applications brought by habeas corpus and/or by petition. Only the
Supreme Court has original jurisdiction over an application for child
custody, as incidental or ancillary relief in a matrimonial action. The
Supreme Court can and sometimes does, refer child custody requests to the
Family Court.
The issue in custody determinations is “the best interests of the child”.
Best interest is a nebulous term and is the general standard. In deciding
particular cases, the courts will consider every issue and/or circumstance
which has relevance to such an award, such as the parents' respective
abilities to satisfy their children's physical, emotional, educational,
and spiritual needs; their ability to make suitable child care
arrangements; the quality of the relationship between each parent and the
child; the child's custodial preference; and the parents' ability to
satisfy the child's need for stability, the financial resources of the
parent’s, the living arrangements, any domestic violence, etc. will all be
considered.
Additionally, Domestic Relations Law §§ 70 and 240 both provide that ''in
all cases there shall be no prima facie right to custody of the child in
either parent.'' Meaning the old school of thought that the mother should
have custody regardless of the facts is no longer the applicable
standard. Meaning Fathers and Mothers both have many important rights.
This
is not legal advice and should not be viewed as such. No advice is given
until there has been an actual consultation with the attorney. The
statements herein are not advice and no one should act according to such
until they have obtained the oral advice of an attorney with regards to
these and all legal matters. |
