Parental Rights vs. Non Parental Rights

Do parents have superior rights to custody over non parents?

Under normal circumstances, only parents have the right to seek custody and have superior custody rights to any non parent. For a non parent to even be allowed to file for custody, they must first show that there are extraordinary circumstances (including, but not limited to surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances) If extraordinary circumstances are found, then and only then may the court consider granting custody to the non parent if that is determined to be in the child’s best interest.

What is custody? Physical custody? Legal custody?

Physical custody refers to where the child lives. Physical custody is sometimes known as residential custody. Legal custody refers to which parent has the legal authority to make decisions involving the child.

What is joint custody?

Joint custody means joint legal custody, and not how much time the child spends with each parent. Joint custody gives both parents equal decision making authority as to major decisions for the child. These decisions include residence of the child, medical and dental treatment, education, childcare, religious education, extra-curricular activities, summer camp and recreation.

Equal authority also means that each parent has an absolute veto over the decisions of the other parent, meaning that if the parents cannot agree as to a decision for the child, a deadlock results. For this reason, courts in New York have held that joint custody is appropriate on consent of both parties, but is rarely awarded after a contested custody proceeding. Where joint custody is appropriate, parties may agree or the court may order that the parties seek the assistance of a mediator or arbitrator in order to resolve decision making disputes.

How do courts determine custody awards?

In determining custody, courts apply a “best interest” standard. Each custody case is decided on its own merits and based on the totality of the circumstances, however, courts routinely consider the following (among other) factors in determining custody disputes:

  1. The parental guidance the custodial parent provides for the child
  2. The ability of each parent to provide for the child’s emotional and intellectual development
  3. The financial status and ability of each parent to provide for the child
  4. Home Environment
  5. The effect that an award of custody to one parent might have on the child’s relationship with the other parent;
  6. Age, Disability, Physical and Mental Health of parents
  7. Alcohol & Drug Use
  8. Domestic Violence
  9. Existing Informal Custodial Agreements
  10. Existing Written Custody Agreements
  11. Finances of Parents
  12. Findings of Child Neglect/Abuse
  13. Recommendations and evaluations of mental health professionals
  14. Preferences of the child
  15. The possible effect of a custodial change on the children
  16. The effect of a separation of siblings

How can i modify a custody order?

Courts use a two part test for when presented with an application to modify custody. First, the parent seeking to modify custody must first show a change in circumstances since the last order. If a change in circumstances is shown, then the parent must prove that modifying the order is in the child’s best interest.