A primer on New York parenting plans

The overwhelming concern for parents going through a divorce or custody dispute is the welfare of their children. Divorce or separation can be a painful emotional process for everyone involved, including children. While certainly not pleasant, custody negotiations do not necessarily need to be contentious. On the other hand, it is important to protect children and provide a home that is best for them.

Custody is either sole or joint. A parent with sole custody is in charge of all major decisions. If there is joint custody, the parent with primary custody has decision-making authority unless otherwise negotiated. The parent whose home the children primarily go to school from is considered the parent who has primary residential custody.

It is possible, but rare, for parents to have joint custody with neither parent designated as the primary residential parent. This normally requires both parents to live in the same school district and to have the ability to agree on all major decisions.

Best interest of the child

New York courts determine child custody according to the best interests of the child. This standard is purposefully broad, and the court can consider any number of factors and circumstances in making its decision. Parents can agree on a parenting plan for the children without court intervention. Generally judges will strongly adopt a pre-agreed parenting plan, but the judge is not legally bound to accept it if the court does not believe it would be in the children's best interest. However, so long as a parenting plan keeps the best interests of the children in mind, these legally binding agreements can save time, money and reduce arguments between parents, and allow parents to control how they will raise their children.

If the parents cannot come to an agreement on where the children should reside then the court must make this decision in the best interests of the children. In contested custody disputes an attorney for the child most likely will be appointed to represent the children. It is possible that children within the same family have different desires and needs and the children themselves will have different attorneys appointed by the court to represent their interests. A child can indicate a preference regarding living arrangements. However, a child's preference is only one factor the court will consider in making its determination, since children's preferences may or may not be in their own best interest.

Children normally have limited involvement in court proceedings. Courts do not want either parent to involve the children in the adult issues of court and only want to hear the children's position as stated by their attorney.

Easing the transition

Custody agreements require negotiation between parents through their respective lawyers. It is important in these negotiations to have clear goals and rational reasons as to what should be included in a parenting plan for custody.

There are also a few practical suggestions that parents can take which may reduce stress on children during this time of transition. For example child psychologists recommend that parents:

  • Maintain the same routine for the children. Keeping the same bedtimes, maintaining the same activities can help children through a chaotic time.
  • Do not speak negatively about the other parent.
  • Constantly remind children they are loved and the divorce or separation is not their fault.
  • Encourage children to maintain a relationship with the other parent.

However in instances of domestic violence these suggestions may not apply. The number one priority is safety for everyone involved. An addiction or mental illness may make it inappropriate for the other parent to spend time alone with the child.

Expert help

New York courts award child custody after considering the family circumstances in the best interest of the children. No one plan is right for everyone. Parents concerned about custody issues should speak to an experienced matrimonial and family law attorney to discuss legal options for obtaining the appropriate child custody arrangement.