Who Generally Has Custody Of The Children During The Divorce Process?

Who Generally Has Custody Of The Children During The Divorce Process?

There is an increasing trend toward shared custody based on the presumption that this situation is in the best interests of the children. Shared custody means that the parents have equal time with the children. Shared custody is often confused with “joint” custody. Joint custody has nothing to do with how much time each parent spends with the children; joint custody means both parents have the right to decision-making and record access regarding the children while shared custody means the parents have equal time with the children.

If there is one parent who is more available to be with the children, then that parent may be found to be the best fit for being awarded primary placement of the children, which means they would have the children for more than 50 percent of the time. However, some judges still will find parents should have shared placement and the children will be with grandparents or even paid caregivers when one parent is unavailable during their assigned placement time. Other judges believe a parent who is more available than the other will have primary placement of the children unless that parent is determined to be less fit than the other in some way. For example, if a parent is an alcoholic, then the other parent may have primary placement even if they are less available.

Work schedules can definitely come into play in terms of child custody determinations. If one parent works from 8am to 5pm and the other parent works from 3pm to 11pm, then the parent who works the day shift may have primary placement simply because the other parent would be working during all the periods of time that the children are home from school, having dinner, getting ready for bed, etc. This arrangement would not necessarily mean that the parent who works in the evenings would not get a lot of time with the children when they are not working. However, again, some judges would still want parents to have a shared arrangement even with one parent working a later shift, allowing that parent to have a family member or paid babysitter care for the children while they worked.

Another factor that weighs heavily in the determination of child custody is which parent has traditionally been the main caretaker for the children. Although the courts are not viewing this as heavily as they used to, it is still a big factor. This means that the stay-at-home parent may be awarded primary custody of the children. However, if the stay-at-home parent needs to start working and both parents end up with the same amount of availability for the children, then neither parent may have an advantage in being named primary custodian and shared placement may again prevail.

If both parents are equally available, shared placement will likely be the custody arrangement, unless one parent is abusive, neglectful, or unwilling, or unable to provide proper care. For example, if a parent does not get the children to school on time, does not properly clothe, or feed the children, shared placement is inappropriate. If one parent has been proven to be abusive, then that parent may only be allowed supervised visitation. Even a really terrible parent will likely be granted some level of supervised visitation with their children. Parents maintain visitation rights to their children, even if only supervised, and it’s very hard to undo that unless the parent’s rights are completely terminated through a neglect and abuse proceeding.

How Do I Make Sure My Children Will Still Be Covered Under My Ex’s Health Insurance Once Our Divorce Is Finalized?

Once a divorce is finalized, the court will order one or both parents to provide health insurance for the children based on the best and most affordable coverage. If the children are currently covered under one spouse’s coverage and that’s the only spouse who has .affordable and good coverage for the children, then that spouse will be ordered to continue that coverage.

This doesn’t mean that the other spouse will not have to contribute to the cost of the children’s health insurance. In fact, the cost of the children’s health insurance is shared pro rata by the parties, which means relative to the parties’ incomes. If the spouses earn the same amount, each spouse would pay 50 percent of the cost of the children’s health insurance coverage. If health insurance is provided by the person receiving support, the person paying support will need to pay their share of health insurance in addition to their basic child support payment. If health insurance is provided by the person paying support, a deduction from their child support obligation can be provided for the other parent’s pro rata obligation for the insurance provided. Pro rata sharing of the children’s cost of health insurance is a part of the child support statute.

Many people ask whether their spouse will be ordered to continue paying for their health insurance (not just the children’s health insurance). A person who was covered by their spouse’s health insurance plan during the marriage will lose that coverage once the divorce is final. However, if they are receiving spousal maintenance, then they could pay for their own health insurance with those funds. Health insurance will continue through their spouse’s policy until the divorce is final.

For more information on Child Custody During NY Divorce Process, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (585) 449-4987 today.

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