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When children are stuck in the middle of a divorce

You probably hoped you would beat the odds and that you and your spouse would live happily ever after. Reality can be cruel, and now you are facing a divorce. You may also be getting the feeling that your spouse is going to complicate the custody issue, and he or she may already have filed for sole custody.

Few things are more painful than the thought of being separated from your child, but you also know how traumatic a custody battle can be for children. While you may wish you and your spouse could work out an agreeable arrangement for sharing custody, the court has its own way of making those decisions.

The best interests of the child

It may sound harsh, but New York courts are not concerned with how sad you will be if you do not have custody. The most important consideration a judge will make is the best interests of your child. This means that the judge will weigh a variety of factors to determine an arrangement that will allow your child to thrive, including:

  • The strengths and weaknesses of you and your spouse as parents
  • Which of you have been the child's principal care giver
  • Your work schedules
  • Your child's relationship with siblings and other family members
  • Your willingness to cooperate with your co-parent
  • Any special needs your child may have

Of primary concern, of course, is the health and safety of your child. This is why the court will also examine the mental and physical health of both you and your spouse. A judge will also investigate any claims of domestic abuse or addiction levied against you or your spouse.

Types of custody

The court will decide which of you will have legal and physical custody of your child. Joint physical custody means that your child will spend half the time with each of you. If the judge grants you or your spouse sole physical custody, the child will spend more than half the time with that parent, and the noncustodial parent may have visitation.

On the other hand, the parent who is granted legal custody will make all important decisions about the child's well-being, such as health care, education, and religious upbringing. Even if you and your spouse share physical custody, only the parent with legal custody can make those decisions. It is possible that the court will agree to joint physical and legal custody, so you and your former spouse will then make those decisions together.

An advocate for you and your children

As difficult as the divorce will be for you, your children may experience emotions they cannot understand. Prolonged disputes between parents may have a lifelong impact on a child. You certainly want to avoid placing any more stress on your children than they already feel.

If you have a suspicion that your divorce will be contentious and your child will face a difficult custody procedure, it will benefit you to have legal counsel who is dedicated to the well-being of children. Seeking resolutions as gently and respectfully as possible may ease the potential trauma a divorce can cause.