The parents of a child have equal powers, rights and duties with respect to the legal custody of the children. The issue of custody is usually a very difficult component of a divorce. The Courts weigh a multitude of factors in determining the best interests of a child, as part of custody, visitation and parental access matters. Those factors are:
- The demonstrated parenting ability and relative fitness of the parties;
- The love, affection and nurturing given by each party to the child, the emotional bond between the child and each party, and the willingness and ability of each party to put the child’s needs ahead of his/her own;
- The length of time the child has lived in a stable and satisfactory environment, the desirability of maintaining the current custodial residence and the stability of the proposed custodial residence;
- The ability of each party to provide for the child’s emotional and intellectual development;
- The financial resources available to each party and the ability of each party to provide the child with food, clothing, housing and medical care;
- The individual needs and expressed desires of the child and the degree to which the custodial determination would continue or interrupt the various elements of the child’s day to day life;
- The willingness and ability of each party to facilitate and encourage a close and optimum relationship between the child and the other party; and
- Any other factor deemed relevant to a particular custody dispute; e.g. domestic violence, substance abuse, fabrication of allegations, and its impact on the child.
The unmarried parents of a child have identical rights, which are usually determined in the Family Court, rather than the Supreme Court.
In almost all cases where custody, visitation or parenting time is at issue, the Court will appoint and Attorney for the Child (formerly referred to as a Law Guardian). Appellate Division Rules regarding custody cases state that the Attorney for the Child must advocate the wishes and desires of the client, irrespective of whether the Attorney for the Child believes that the child’s best interests may be otherwise. The only exception is when the child’s wishes could place the child in imminent risk of harm.