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VMM FAMILY INSTITUTE WEEKLY INSIGHTS: JOINT CUSTODY AND THE BEST INTERESTS OF THE CHILD

Many states have a presumption of joint custody upon the dissolution of a marriage. However,New York has maintained the position that only sole custody can be awarded afer trial. The courts have concluded that joint custody can only be reached by agreement of the parties. Since New York adopted that position nearly 40 years ago, attorneys, litigants and even the New York State courts have sought other solutions where the issues warrant. Issues including mediation, parent education and spheres of influence are now topics which enter into the equation.

The legislature enacted the standard that the courts must always consider the best interests of the child. By doing so, it rejected the idea that either fatherhood or motherhood alone carries with it a superior right to custody

Best interests must include the weighing of the totality of the circumstances surrounding each of the parties’ abilities to provide such things as: a nurturing home environment; parental guidance in general and more specifically with the respect to the child’s emotional and intellectual development; a secure financial future; the relative fitness of each of the respective parents; and the effect that the award of custody to one parent might have on one’s relationship with the other parent.

Our office successfully represented a father seeking joint custody. We sought and obtained a decision of joint custody after trial. Despite the prevailing law, we obtained our goal by seeking joint custody from the outset. Our legal theory focused on the positive aspects of the relationship between father and mother and how many positive things each party had to say about each other. We then incorporated all of the standards as set forth above concerning the best interests of the child to persuade the court to arrive at this decision.

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