Child custody agreements or orders sets out the legal parameters between children and their parents. There are two different forms of custody: legal custody and physical custody. Generally, legal custody is either sole or joint and determines which parent has the vested power to make decisions concerning the child’s health, education, religion and welfare. Physical custody refers to the parent with whom the child resides with predominantly, subject to the visitation rights of the other parent. Visitation is the term used for the visits the parent who does not have physical custody is allowed, at a minimum absent consent of both parties. There are many variations of physical custody agreements and/or orders. Custody matters in New York are based upon the best interests of the child.
If parties are unable to reach an agreement on custody and visitation issues, the court will appoint an Attorney for the Child at the cost of the parties (usually divided in proportion to their respective incomes). The court will afford the child’s preference regarding which parent to reside with and why some weight in determining custody in relation to the child’s age.
Another consideration regarding custody is the issue of parental alienation. Parental alienation refers to the process in which a child is psychologically persuaded to emotionally detach from a parent, either by losing respect or love for that parent. This can be caused by one party purposely, such as in the case of one parent interfering with the other parent and child’s relationship, or may occur out of the natural consequences of a stressful divorce proceeding.
During a custody dispute, a parent may argue parental alienation with the intention of swaying the court on where the best interests of the child lie. The court must account for the justification as to why the child is not seeing the specific parent. Courts rely on evidence, such as witness testimony regarding the alienating behavior, to determine if, in fact, alienation has occurred. Courts also consider any direct interaction between the court and the child, and with the parents. Further, courts can appoint forensic experts, such as psychologists to help them in determining whether or not a child is a victim of parental alienation.
If alienation is proven, it is highly weighed when considering what is in the best interests of the child. Often courts may direct and/or change the custody status in order to prevent further parental alienation. Cases are decided on an individual basis because the determination relies on facts and how modifications of custody will impact a child.