Child Custody & Visitation

Child Custody can be the most complicated and controversial component of a divorce in New York.  Courts decide custody cases based on what is best for the child; known as the “best interests” standard and do not favor either parent more than the other. If the parties can agree about custody of the child; where the parties reach an understanding on how to raise and care for the child with both parents sharing in the responsibilities and maintaining involvement in the day-to-day life of the child, the Court may enter an order of custody on consent without a formal hearing. If the parties cannot agree on who should have custody, the court will hold a hearing, or a series of hearings if necessary, and make an award of custody . The court will hear testimony from both sides and often appoint a law guardian who will make an investigation and issue a recommendation regarding child custody and an appropriate visitation schedule. The court may also order an investigation and report from a social-services agency or mental health professional. As mentioned above, a child custody dispute can be complicated, emotionally draining, and costly.

There are two parts to custody; Physical (residential) custody – Which parent the children will live with; AND Legal custody – The right and responsibility to make decisions for a child concerning matters such as health, education, religion, and general welfare.  

Custody arrangements:

  • Joint Legal Custody (most common): This is where the children live with one parent (residential custodian) while the other parent has visitation rights. Both parents have the right to make major decisions for their children. These decisions include residence of the child, medical and dental treatment, education, child care, religious education, extra-curricular activities, summer camp and recreation. The smaller, day-to-day decisions in joint legal custody arrangement are made by the parent who is physically caring for the child at the time.
  • Joint physical custody: Often referred to as shared parenting, it is when the child resides with both parents for a significant amount of time. This arrangement does not always work out to be an exact 50/50 split. The New York Courts will not award joint or shared custody unless the parents can demonstrate a level of maturity, willingness and ability to set aside their personal differences in order to decide what is in the best interest of their children. In addition, The parents would also have to live in close proximity as not to affect the child’s schooling. (A few years ago there was a trend towards awarding this type of custody, however recently it has been determined that this may not be in the best interest of the child.)
  • Sole legal custody: This form of custody provides one parent with the right to make all the legal decisions for the child including but not limited to their health, education, general welfare, and religion. Unless there are extraordinary circumstances, the non-custodial parent is awarded specific visitation with the children. This type of custody is not very common anymore.
  • Visitation: Visitation schedules are crafted taking into consideration what is in the child’s best interests. Parents are entitled to visit with their children unless doing so is not in the best interests of the child. In some circumstances, other family members such as grandparents may also file a petition seeking visitation. Parents are free to  tailor a visitation schedule to their specific needs and circumstances. If left up to the courts, however, you are likely to see a common boilerplate schedule that takes into consideration weekly arrangements during the school year, holiday visitation schedules, and extended or summer visitation. Visitation may, depending on the circumstances of your case, be unsupervised, supervised, or therapeutically supervised, and may also involve a safe place of exchange or a monitored exchange.NOTE: The Legal system treats visitation and child support as separate issues. NY Courts have held that a parent’s failure to pay support because of the parent’s inability to do so is not be sufficient cause for denial of visitation. In addition, if the courts find that you did not have sufficient cause for denial of visitation, the Court may impose a civil penalty of up to $500 on the party denying visitation, find the party denying visitation in contempt of the Court’s order, require the party denying visitation to post a bond in order to ensure compliance, award reasonable attorneys fee to the party denied visitation, require the party denying visitation to reimburse the other party for any costs, change custody for unwarranted, continuous and systematic interference with visitation, and/or award any other remedy that the Court deems reasonable.
  • Temporary Custody: Before the divorce is finalized, a temporary child custody arrangement is established. This can usually be done without the courts intervention if both parties can reach an agreement. If the parties cannot decide the court will make a temporary award based on the best interest of the child. The temporary custody arrangements are not necessarily what the final custody arrangement will be. A court,  after considering all of the evidence and deciding what is most beneficial to the child, when the divorce is finalized, will award permanent physical (residential) and legal custody.

FACTORS A COURT CONSIDERS IN A CUSTODY AWARD: No one factor is determinative in making a child custody award. The New York courts must weigh and balance the “totality of the circumstances” in making any custody determination. In deciding what is in the child’s best interests, the New York courts are required to consider many factors, such as:

  • Which parent has been the main care giver/nurturer of the child
  • The parenting skills of each parent, their strengths and weaknesses and their ability to provide for the child’s special needs, if any
  • The mental and physical health of the parents
  • Whether there has been domestic violence in the family
  • Work schedules and child care plans of each parent
  • The child’s relationships with brothers, sisters, and members of the rest of the family
  • What the child wants, depending on the age of the child
  • Each parent’s ability to cooperate with the other parent and to encourage a relationship with the other parent, when it is safe to do so
  • The length of time the present custody arrangement has continued
  • Abduction or abandonment of the child or other defiance of legal process by one of the parents
  • The relative stability of the respective parents
  • The care and affection shown to the child by the parents
  • The atmosphere in the homes
  • The ability and availability of the parents
  • The morality of the parents
  • The prospective educational probabilities
  • The possible effect of a custodial change on the children
  • The financial standing of the parents
  • The refusal of a parent to permit visitation and/or the willingness of a parent to encourage visitation
  • Unauthorized relocation of the parent and child to a distant domicile
  • Making unfounded accusations of child abuse
  • Courts may consider religion as a factor where a child has developed actual ties to a specific religion, or where a parent’s particular religious practices threaten the health and welfare of the child.
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