Legal Question in Family Law in New York
Child custody in concern with living conditions of the children.
A friend of mine is going through a divorce right now and is worried about an issue of custody. They have 2 sets of twins, all girls, that are one year apart. The wife has no job and is moving in with her uncle(who has a drinking problem) and aunt(who is not emotionally stable) who both live across the street from one of the worst housing projects in staten island. At first the wife was willing to give all the girls to the husband (who can provide better living conditions for the girls) but changed her mind. My friend is worried about her getting custody of the girls and having them in the living environment that she would be subjecting them to. My friend does not have his own apartment yet and is living with his parents until he gets a new apartment. But the living conditions in his parents apartment are by far better than what the wife can provide. Im not sure if it matters , but the wife is also the cause of the divorce on the grounds of adultery. Can she get custody? and what can he do to prevent heer from getting custody and subjecting them to a unfit living environment?
2 Answers from Attorneys
Re: Child custody in concern with living conditions of the children.
Your friend might be able to get custody of his children. But, it depends on several factors, that includes but is not limited to the age of the children, which parent was the "primary" caretaker during the marriage, the health, safety, and education of the children, and so forth.
If the girls are young, and are more comfortable witht their mother, it is likely the Court will order spousal support in addition to child support, in order to provide the children and spouse with the "best possible" circumstance, the father can afford. Please note, child support (for 4 children) and spousal support together, could easily approach 50% of your friend's income. In NY spousal support is based upon Need. It is not generally affected by "spousal misconduct" during the marriage.
So,... Suggest, your friend try to "cut a deal" with the soon to be EX. Help her find a place and better circumstances than currently proposed. Perhaps, help her to stay in the home, with the children, rather than move.
Alternatively, he can wait for the mother to fail in providing a healthy safe environment for the children, then apply for custody.
Of course if the mother is entirely irresponsible, AS A PARENT, (which is entirely separate from the kind of wife she was) and is unsafe and unhealthy for the children to be around, full time. Your friend MUST, immediatly apply for custody, in the children's BEST INTERESTS; and hopefully, the Court will agree with him.
Good luck,
Phroska L. McAlister,ESQ
Re: Child custody in concern with living conditions of the children.
She could, the adultery is probably a non-issue on its own but can play a role in the determination of atotality of the circumstances for who can provide the best environment for the children. The issue boils down to "the best interest of the child" standard.
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