Child custody may become an issue in several different settings. The most common custody awards are made as incidental relief in a divorce action as well as through a petition, an order to show cause or what is generically called a writ of habeas corpus.

Both the Supreme Court and the Family Court have jurisdiction to determine custody applications brought by habeas corpus and/or by petition. Only the Supreme Court has original jurisdiction over an application for child custody, as incidental or ancillary relief in a matrimonial action. The Supreme Court can and sometimes does, refer child custody requests to the Family Court.

The issue in custody determinations is “the best interests of the child”. Best interest is a nebulous term and is the general standard. In deciding particular cases, the courts will consider every issue and/or circumstance which has relevance to such an award, such as the parents’ respective abilities to satisfy their children’s physical, emotional, educational, and spiritual needs; their ability to make suitable child care arrangements; the quality of the relationship between each parent and the child; the child’s custodial preference; and the parents’ ability to satisfy the child’s need for stability, the financial resources of the parent’s, the living arrangements, any domestic violence, etc. will all be considered.

Additionally, Domestic Relations Law §§ 70 and 240 both provide that ”in all cases there shall be no prima facie right to custody of the child in either parent.”  Meaning the old school of thought that the mother should have custody regardless of the facts is no longer the applicable standard.  Meaning Fathers and Mothers both have many important rights.

 This is not legal advice and should not be viewed as such.  No advice is given until there has been an actual consultation with the attorney.  The statements herein are not advice and no one should act according to such until they have obtained the oral advice of an attorney with regards to these and all legal matters.

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