New York Custody & Visitation Law
When parents separate and cannot agree on a custody and/or visitation arrangement, it may be necessary for the matter to be decided in court. If you are going through a divorce, child custody and support may be resolved in the Matrimonial Part of the New York Supreme Court. If you are have already obtained a divorce or were never married, you must file a petition for child custody or visitation in Family Court.
In custody and visitation matters the judge must consider what's in the best interests of the child. Among the factors considered by judges are:
- Stability, lifestyle, health and schedules of parents;
- Criminal records, accusations of child abuse and domestic violence, and other complaints against parents;
- Which parent has been the primary care giver;
- Each parent's parenting skills;
- Each parent's ability to provide food, shelter, and education for the child;
- Child's age, gender, health, routine, education and schooling;
- Emotional bond of children and parents;
- Willingness of each parent to encourage contact with the other parent.
The preference of the child is more important when it comes to older children and less so with pre-teens and toddlers.
Prior to making a decision, the court will usually order an investigation from a social-services agency or mental health professional, which may involve interviews with and analysis parents and children, psychological exams, and other information. It is very important to cooperate during the investigation if you would like to win custody of your child.
Each parent has the right to have an attorney present. Parents who cannot afford an attorney may get a Legal Aid. The children will have an attorney appointed to represent their interests. The child's lawyer is called the "law guardian". Because the law guardian is independent and is appointed to protect the child, his/her opinion will be important to the judge, and as such, it is key that you leave a positive impression on them.
What Is Child Custody?
An order of custody gives responsibility for guardianship of a minor child under the age of 18 to one or both parents. Where both parents have custody, it is referred to as "joint custody". In joint custody, both parents make major decisions about the child together. In sole custody, only one parent has the right to make the major decisions. By law, joint custody may be ordered only when parents can get along well enough to work together to protect the child's best interests. Parents who cannot get along may not get joint custody.
Legal custody gives the parent the right to decide religious, educational, medical issues, such as what school the child will attend and whether or not the child will take medication. In some cases, one parent wants to treat a child's disease such as ADHD and the other does not. In other cases, one parent may want to send a child to a school with a particular orientation, which may be opposed by the other parent. The decision in such cases is made by the person who has legal custody of the child.
Physical custody refers to the child's residence. Both parents may have physical custody, which means the child lives with each parent half of the time. Alternatively, one parent may have sole physical custody.
What Is Child Visitation?
The parent who does not custody may still receive visitation rights. A person who has visitation rights may not make decisions as to doctors, school and other aspects of the child's life. However, this parent may often request to receive reports from doctors and school, attend PTA meetings, and otherwise monitor the child's life.
Court orders for visitation may specify days, times, and places the child may be picked up and dropped off, as well as where the child will spend holidays and vacations. Visitation may last anywhere from a few hours to several days, and sometimes several weeks in a row. The non-custodial parent may sometimes receive up to 3 days of visitation a week, though it is usually less in most cases.
Parents have the right to visit their children unless doing so is bad for the children. Custodial parents are strongly cautioned that they should not use their children as a means to get back at their former mates. Just because your ex was a bad spouse, it does not necessarily make them a bad parent. Trying to turn your child against the ex will be viewed very negatively by the judge.
On the other hand, visitation is not a right and in certain cases may be revoked, especially if the parent presents a danger to the child's welfare. In other cases, visitation may be supervised to protect the child.
Who Can File For Child Custody & Visitation?
A person who has an interest in a child's well-being and has a connection to the child may file a petition in the Family Court requesting custody. A copy of the petition and a summons must be delivered personally to the person or parties who have custody of the child. If one of the parents seeks custody, the other parent must be served. If a non-parent is seeking custody of the child, then both the child's mother and father must be served. Non-parents must remember that courts generally prefer the parents to have custody, and non-parents, including grandparents, will be faced with a difficult challenge in trying to obtain custody.
Will Custody & Visitation Be Decided During The First Court Appearance?
It is unlikely that custody and/or visitation would be decided during the first court appearance, but it does happen sometimes. Parents may come up with an agreement immediately and enter into a court-approved settlement. Barring that, the parties should be prepared to defend their rights. Temporary custody, however, may be granted early in the case until permanent custody is decided upon.
Changing Custody & Visitation Orders
Both parties may file a petition to amend or modify the custody or visitation order. To change custody or visitation, one must prove to the court that circumstances have changed since the earlier order. The court will hold a hearing to determine whether a change is best for the child.
Failure to Obey A Custody or Visitation Order
A party may file a petition if the other parent has violated the order. After the court holds a hearing, the judge may change the order. The judge may also hold a party in contempt of court for refusing to follow the judge's orders.
What can I do if my child is abused or neglected by the other parent?
An emergency petition must be filed immediately if you believe that your child may be in danger. Depending on circumstances, you would be able to see a judge within days or faster. You should also report any abuse or neglect to the ACS.
A party may file a petition if the other parent has violated the order. After the court holds a hearing, the judge may change the order. The judge may also hold a party in contempt of court for refusing to follow the judge's orders.
Alternative Options
In some counties in New York City, a custody or visitation case may, if all the parties agree, be heard by a Family Court "court attorney referee." This usually speeds up the process because judges often have extremely busy schedules and cannot hear cases for several months in advance.
Another possible option for parents is to go to mediation to reach a compromise or to narrow the legal issues. Mediation is a free, voluntary, and confidential process where the parents work with a mediator in an attempt to resolve their differences. If the parties agree on a parenting plan, the court must approve it before it becomes legally binding. In deciding whether mediation is a proper option, one must consider the relationship between the parties - if one of the parents is very dominant over the other, mediation may not work because of the unequal relationship between the parties.