Robert G. Smith, PLLC
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How family law judges resolve child custody disputes

Reaching decisions in child custody or visitation disputes can be a delicate and challenging process for family law judges in New York and around the country, and their primary concern in these situations is to determine what would be in the child's best interests. While the best interest doctrine is widely used, it is also somewhat nebulous and can be difficult to apply when both parents make impassioned claims. When contending with highly charged emotional arguments, judges may look first to see which parent has been the child's primary caregiver.

Psychologists place great importance on the role of primary caregiver, and studies have found that children may develop emotional problems when they are separated from the parent that has provided them with their major source of solace and support. When both parents claim that they have adopted the mantle of primary caregiver, judges may ask which of them helped the child with their school homework, prepared their meals or accompanied them to appointments with doctors or dentists.

When no clear primary caregiver emerges, judges may look at other factors to determine what would be in the child's best interests. This could include asking children for their opinion if they are old enough to understand the importance of the proceedings or looking into the living arrangements and backgrounds of the estranged parents. Issues like substance abuse problems, a raucous home environment or an unstable work history would likely reduce a parent's chances of being awarded primary physical custody.

Child custody disputes can be challenging for family law attorneys as well as judges. Parents may become inflexible and unyielding when their child's welfare is at stake, but attorneys may remind them that there is no guarantee that they will be happy with a judge's decision should the matter be decided in court.

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