The Challenges of Child Custody

11/15/2010 12:00 pm ET | Updated May 25, 2011

Going through a divorce is one of the most difficult experiences one can face. It is often emotionally draining, time consuming, and costly. Divorce becomes even more challenging when children are involved and issues over custody arise.

There are several factors a court must weigh before deciding custody. Some of these include determining whether the court has jurisdiction to hear the case, who the primary care taker is, and who currently has physical custody of the child. The court must also consider the wishes of the child (if the child is old enough) as well as the impact a separation or change in custody will have on siblings. Courts will also evaluate each parent's history and background, home stability, and the financial standing of each parent. In the past, New York abided by a "tender years" presumption that children were always better off with their mothers during their formative years. However, contrary to popular belief, mothers no longer have a preferred right to custody. It is based on the "best interests" of the child(ren).

Custody can be divided in a variety of ways. In New York, the Courts can only award, after a trial, sole custody to one parent. Sole custody gives one parent the authority to make all decisions for the children. However, most parties to a divorce try to avoid trial as much as possible as they would rather negotiate their own settlement than leave it up to a judge. This is where joint legal custody and shared custody come into play. The non-custodial parent is then granted visitation. Joint custody affords both parents legal custody and the authority to make major decisions such as medical treatment, schooling, and religious education. When joint custody is granted, one parent typically becomes the primary residential caretaker. Shared custody allows both parents to split legal custody and enjoy specific periods of responsibility. This gives both parents the right to make major decisions on an equal basis for their children.

Although it may be difficult, it is imperative that parents do their best to remain mature and amicable while custody is being decided. Doing so will not only lead to a more favorable outcome; more importantly, it will make this difficult time in a child's life a bit more manageable.