Custody/Visitation

CHILD CUSTODY AND VISITATION IN NEW YORK

Undisputed Legal  | Child CustodyVisitation Process Service

[1.1] WHAT IS CHILD CUSTODY?

The legal responsibility for a child’s care is child custody. This may occur via physical custody (residency) or legal custody. Physical custody provides for where the child will live, while legal custody provides for decision-making power over things like education and health care. 

Legal custody does not necessarily always mean that only one parent has the authority to make decisions about the child. Joint custody is a situation where the two parents and other authorized caregivers (if indicated) of the child share authority amongst each other. These parents must thus communicate with each other enough to keep them informed about the child’s present circumstances and come to decisions together. Sole custody, on the other hand, leaves the non-custodial parent with the right to medical or educational information but does not guarantee them the right to make decisions. 

Additionally, when referring to physical custody, courts often use the term primary placement to describe where the child usually lives. Visitation of the second parent is often termed secondary placement and is often accompanied by a visitation schedule that suits both the child and the parent’s time constraints. If the Judge pronounces joint physical custody, the child lives with each parent for an equal amount of time. An Order of Custody on consent is an Order issued by the presiding judge in New York Family Court that typically establishes a custody and visitation arrangement that has been agreed to by the parties.

[1.2] INFLUENCES ON GRANTING OF CUSTODY

The preferences of a child will not be automatically taken into consideration, though a court is more likely to consider the wishes of an older child than a younger one. Children are highly influential, and this is done to ensure one family member does not influence the child in the case. 

The ‘totality of circumstances is something that a court must also take into account. Usually, one factor isn’t determinative of the best interests of the child or of child custody in New York. If, however, the child has been living with one parent for a long time and is thriving, a court will be reluctant to disturb the status quo.

New York has custody agreements, which are now referred to as parenting plans as well. A New York court can make orders about the child’s custody only until the child is 18 years old. The Court gives custody based on what is best for the child; this is called the best interest of the child. If there is no court order, then both parents have equal rights to physical and legal custody of the child.

[2.1] HOW IS CUSTODY GRANTED?

Custody may be asked for a child primarily by the mother or the legal father [a man who has signed an Acknowledgement of Paternity or received an Order of Filiation from the court or is listed as the father on the child’s birth certificate.]  However, the presumption of the spouse of the child’s birth mother being the child’s parent holds true, especially in cases of conception through in vitro fertilization or artificial insemination. Recent precedents allow for the domestic partner of the child’s birth or adoptive parent to establish parental rights even if they are not married to them, 

It cannot be said that there’s a default right to custody for either parent. Sans a custody order, neither parent can keep the child, and relatives and friends can ask the court for custody. This only occurs in extraordinary circumstances including situations such as surrender by the parent, abandonment, persistent neglect, unfitness, or disruption of custody over an extended period of time. If they can show extraordinary circumstances, then they must also prove that it is in the best interest of the child for the non-parent to have custody.

Visitation, however, can be asked for either parent, siblings and half-siblings, and grandparents.  It needs to be determined whether visitation is in the child’s best interests, though a parent is entitled to potent and frequent visitation. In addition to this, the custodian or parent cannot stop visitation if the other parent does not pay child support.  Instead, he/she can file a child support violation petition to require payment.

[3.1] NEW YORK CUSTODY LAWS AND BEST INTERESTS OF THE CHILD

Under New York law, the best interests of the child are the most important factor in considering which parent gets physical custody and whether a situation warrants granting sole custody. A balance of each parent’s ability to satisfy their child’s needs must be achieved in order to fulfill the test of the ‘best interests of the child.’ 

There does not exist a single tipping factor for this best interest, instead of achieving the same through an accruing of all relevant factors.  A judge may also order an investigation from a social services agency such as Child Protective Services (CPS) or Administration for Children’s Services (ACS), and the judge can consider the report generated by that agency.

Stability is often seen as a primary factor for the best interest of the child. This often leads to relying on the parent who was first awarded custody by the court or by voluntary agreement. This reduces the shock on the child and allows them to flourish in an environment they already are familiar with. The idea of the primary caretaker is often an advantage in this deliberation, as a priority in custody disputes is often given to the parent who acted as the primary caretaker before the divorce or separation as well. This, however, may be changed if both parents are working. Better child care arrangements are preferred, as they benefit the child in their development. 

Substance abuse, mental illnesses [including personality disorders or emotional instability] dramatically reduce the likelihood of that parent receiving Severe physical illness/disability that greatly affects one parent’s ability to care for the child may affect a custody award, with the parent suffering from such a condition being less likely to receive custody. 

The best interests of the child require them to be taken care of to the best of their parents’ ability. Domestic abuse, including spousal abuse, influences a spousal award, as will evidence that one parent abused, neglected, or abandoned the child will affect custody, with the parent who committed such acts against the child being less likely to receive custody. In fact, domestic abuse is one of the few factors that the judge absolutely must consider. Indeed, these actions almost automatically disqualify that parent from receiving custody of the child. 

Conditions in the home environment must also be taken into account. A court would not want to place a child in a dangerous or unhealthy household, especially with a parenting style that might be absent or negligent. This reasoning would also require the courts to consider which parent can provide financially for the child, as   holistic development would require better educational opportunities and comfortable housing, influenced by the fiscal situation of each parent

Ultimately, the courts will consider the parents’ behavior in court and are more likely to give custody to the parent who will encourage the child to build a relationship with the other parent. The courts may consider a parent’s physical, mental, and emotional health and ability to financially support the child. But most importantly is whether the parent’s parenting skills match the emotional and physical needs of the child. It’s necessary to understand where the child is more likely to be distressed and identify the better option for the child’s well-being in order to come to a decision.  The child can state his/her preference through the Attorney for the Child, through which the court will examine why exactly the child has this preference towards one parent. Older children have greater weight given to their preference, but until the child is 18, the court makes the final decision regarding where the child lives. 

[4.1] CHANGE IN CUSTODY OF THE CHILD

After the award of custody, either parent is still allowed to change these terms. Custody or visitation may be modified by a petition to change the same. The parent must prove that there was a significant change of circumstances since the last order, and a change in custody would adhere to the child’s best interests. The test of substantial change is used to preserve erstwhile stability as the court is reluctant to change primary residence without an actual significant cause. It’s up to the court to decide what facts constitute a substantial change in circumstance.

Some examples of facts that do warrant a change in the custody order include intent to move to another location like relocation of residency, emotional abuse or physical abuse if one party is consistently violating the custody arrangement, a significant change in financial circumstances, and a decline in a parent’s health. Additionally, a parent can file for a warrant to remove the child from the other’s residence if there’s a chance of imminent harm to the child. The court is bound to hear this petition the very next day. 

If one parent is in violation of the custody and visitation order and refuses the return the child, police assistance may be granted. In serious circumstances, the parent’s arrest may be demanded. Additionally, a violation petition in Family Court may be filed in order to enforce relevant provisions about the custody. 

On the other hand, a parent who refuses to visit their child cannot be forced to do so by the court. Visitation rights may be curtailed until they consistently visit the child, but they cannot be compelled to do the same. 

The best chance of achieving one’s goals in terms of obtaining custody is to communicate with the co-parent and keep all communications and negotiations civil. Support the rights and the relationship of the other parent. Favor is more likely to be gained with the court by being cooperative and understanding of court orders.

For more information on serving Child Custody and/or Visitation papers, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Sources

1. NY Dom. Rel. §240(1)

2. Church v. Church, 656 N.Y.S.2d 416 (3rd Dept 1997)

3. NY Dom Rel Law § 240(1)(a)

4. NY Dom Rel L § 77-J (2012)

HOW THE COURT DEALS WITH VISITATION/CUSTODY IN NEW YORK STATE

Undisputed Legal | Visitation Process Service / Custody Process Service

In most cases, the court wants the child to have a relationship with both parents. When one parent has sole custody, the court will let the parent who doesn’t have custody have visits with the child and spend time with the child unless there is a good reason for the parent not to have visitation.

Custody and visitation are two separate matters but they are usually decided during the same hearing. A visitation petition can be filed as a separate case.

The court will order visitation if it is in the best interest of the child. Visitation is also called “parenting time”.

Best Interest of the Child

When there is a court case that affects a child, like custody, parental rights, or adoption, the court will consider the “best interest” of the child when making its decision.

There is no standard definition of the “best interest” of the child. In general, it refers to the factors that the judge considers when deciding what will best serve the child and who is best suited to take care of the child. In New York, the “child’s health and safety shall be the paramount concerns” when making a decision.

 

Custody and Visitation– When awarding custody and visitation, courts do not favor one parent over the other parent. The court awards custody and visitation based on what is best for the child. The Judge will look at many things to figure out what would be in the best interest of the child, such as:

  • which parent has been the main caregiver/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

Who Can File For Visitation– A child’s parents, grandparents, and siblings can ask the court for visitation. This doesn’t mean that the court will give visitation.

If the child is in foster care, a parent has a right to visit with the child unless his or her parental rights have been “terminated.” If the parent’s parental rights have been terminated, this means that they do not have a right to visit the child. 

The Visitation Hearing– Usually, a child’s parents can agree on a visitation schedule on their own. But, if the parents can’t agree then the Judge will have a hearing to decide on a visitation schedule unless there is a good reason for one parent not to have visitation.

Help with Your Visitation Order– If you already have a custody or visitation order for your child from Family Court, you can use the Custody/Visitation Modification DIY Program to ask the court to change the order or the Custody/Visitation Enforcement DIY Program to ask the court to enforce it if it is not being followed.

Custody/Visitation Modification Petition Program

Aviso: Este programa es en inglés, pero obtendrá su traducción al pulsar sobre “ESPAÑOL.” Deberá responder en inglés o el tribunal rechazará sus documentos. Cuando termine este programa podrá imprimir las instrucciones en español.

You can use the Custody/Visitation Modification Petition to change the custody/visitation order if there is a “change in circumstances.” This free program will help you fill out the petition that you will need to file in Family Court.  

File this form in Family Court.

You can use this program if:

  • the custody/visitation order is signed by a Judge from a New York State Court,
  • you are the parent of the child or children,
  • the child or children are not in foster care, and
  • only you and the other parent are on the order.

Information Checklist– You will need the following information with you when you use this program:

  • The name and address of the other parent.
  • A copy of the custody/visitation order.
  • The names, addresses, and birth dates of the children.

About DIY Forms– This program is not e-fileable. Your papers must be printed, then filed at the Court.

Who Can Use These Programs?

You can use DIY Forms if:

  • you’re a court user and you don’t have a lawyer;
  • you’re a legal services provider;
  • you’re a pro bono lawyer. Pro bono lawyers filing a DIY Form must submit this pro bono affirmation.
  • you’re from a low-bono (reduced fee) program recognized and authorized to use the DIY Form programs by the NYS Courts Access to Justice Program. You must submit this low-bono affirmation with the filing.

Commercial use is prohibited and no one may charge for using these programs. When you begin the program, you will be asked to accept these terms of use.

Custody/Visitation Enforcement Petition Program

Aviso: Este programa es en inglés, pero obtendrá su traducción al pulsar sobre “ESPAÑOL.” Deberá responder en inglés o el tribunal rechazará sus documentos. Cuando termine este programa podrá imprimir las instrucciones en español.

You can use the Custody/Visitation Enforcement Petition if the custody or visitation order is not being followed. This free program will help you fill out the petition that you will need to file in Family Court.

File this form in Family Court.

You can use this program if:

  • the custody/visitation order is signed by a Judge from a New York State Court,
  • you are the parent of the child or children,
  • the child or children are under 18,
  • the child or children are not in foster care, and
  • only you and the other parent are on the order.

IMPORTANT:

If you believe that a child is being neglected or abused, contact the child welfare authorities at 1-800-342-3720. If a child is in immediate danger, call 911.

Information Checklist– You will need the following information with you when you use this program:

  • The name and address of the other parent.
  • A copy of the custody/visitation order.
  • The names, addresses, and birth dates of the children.

About DIY Forms- This program is not e-fileable. Your papers must be printed, then filed at the Court.

Who Can Use These Programs?

You can use DIY Forms if:

  • you’re a court user and you don’t have a lawyer;
  • you’re a legal services provider;
  • you’re a pro bono lawyer. Pro bono lawyers filing a DIY Form must submit this pro bono affirmation.
  • you’re from a low-bono (reduced fee) program recognized and authorized to use the DIY Form programs by the NYS Courts Access to Justice Program. You must submit this low-bono affirmation with the filing.

Commercial use is prohibited and no one may charge for using these programs. When you begin the program, you will be asked to accept these terms of use.

For more information on serving Visitation / Custody papers, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

COURTS ON HOMOSEXUAL RELATIONSHIPS WITH CHILD CUSTODY

The impact of a parent’s homosexual relationships on custody decisions varies dramatically from state to state. Courts in many states are more willing to assume harmful effects to a child from a parent’s homosexual relationship than from a heterosexual relationship. On the other hand, some states treat homosexual and heterosexual relationships equally and will not consider the relationship significant unless specific harm to the child is shown.

A homosexual parent (or a heterosexual parent) seeking custody will have a stronger case if they present evidence that the child does not witness sexual contact between the partners and that the child likes the parent’s partner. 

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Custody/Visitation After Divorce

Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child. 

In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. That parent usually is called the custodial parent. The other parent generally is referred to as the noncustodial parent. The noncustodial parent almost always has a right of visitation a right to be with the child, including for overnight visits and vacation periods. 

In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child. 

As with financial issues in a divorce, most husbands and wives have reached an agreement on custody before they go to court. Fewer than 5 percent of parents have custody of their child decided by a judge.

When parents cannot agree on custody of their child, the court decides custody according to the best interest of the child. Determining the best interest of the child involves consideration of many factors. Those factors, along with more information about visitation and by a judge.

For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.

Do I Have To Pay Child Support If I Have Joint Custody?

A question often arises on the effect of joint custody on child support. The effect of joint custody will depend on the nature of the joint custody arrangement. If the parents have joint legal custody (by which they share making major decisions regarding the child), it will have little effect on child support. If the parents have only joint legal custody, one parent still has primary custody of the child and handles payment of most of the child’s day-to-day expenses. The joint custody arrangement has not reduced the custodial parent’s expenses for the child. 

If the parents have joint physical custody, with the child spending a substantial amount of time with each parent, and if the parents have approximately equal incomes, neither parent may have to pay support. The father and mother will pay the child’s day-to-day expenses when they are in their respective homes. However, the parents will need to coordinate payments on major expenses such as camp, school, clothing, and insurance. 

If there is a significant difference in the parents’ incomes, the parent with higher income probably will make payments to the other parent or pay more of the child’s expenses. Still, the amount paid probably will be less than the guideline amount because of the joint physical custody arrangement. 

For information on serving joint custody papers visit www.undisputedlegal.com or call (800) 774-6922; representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!

What You Need To Know About Child Custody and Visitation

WHAT IS AN ORDER OF CUSTODY?

An order of custody gives responsibility for the child’s care, control, and maintenance to one or both the child’s parents or another party.  The court may not decide issues of custody and visitation if the child is 18 years or older.

WHO MAY FILE A PETITION FOR AN ORDER OF CUSTODY?

A person who is interested in a child’s well-being and has some connection or relationship with the child may file a petition in the Family Court requesting that the court place the child in his or her custody. The petition should be filed in the county where the child resides, so long as the child has been residing in the state for the past six (6) months. A copy of the petition and a summons must be delivered personally to (served on) the person or parties who have custody of the child. If the child’s parents are separated and one parent seeks a custody order, that parent must have the other parent’s papers. If a non-parent is seeking custody of the child, both the child’s parents must be served.

WHAT HAPPENS AT THE HEARING?

If the parties reach an agreement about custody of the child, the judge may take testimony from both parties and 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. The court will hear testimony from both sides and will appoint a lawyer to represent the child. The court may order an investigation and report from a social services agency or mental health professional. After considering the evidence, the court will award custody. Parents have priority to receive custody over non-parents, for example, grandparents. But the court will always consider what is in the child’s best interests.  In all counties in New York City, a custody or visitation case may, if all the parties agree, be heard and decided by a “court attorney referee.”

WHAT DOES THE COURT CONSIDER WHEN DECIDING WHAT IS BEST FOR A CHILD?

A Family Court judge decides custody cases based on what is best for the child. This is known as the “best interests” standard. To make a custody decision, the judge will hear evidence about (1) which parent has been the primary caregiver; (2) each parent’s parenting skills; (3) each parent’s ability to provide food, shelter, and education for the child; (4) each parent’s mental and physical health; (5) whether there is a history of domestic violence in the home; (6) the child’s relationship with other family members; (7) what the child wants; and (8) the parents’ ability to cooperate.

WHAT IS THE DIFFERENCE BETWEEN LEGAL AND PHYSICAL CUSTODY?

Legal custody is the right to make major decisions about the child’s care, including medical care, religious upbringing, and education. Physical custody is where the child resides.

WHAT IS THE DIFFERENCE BETWEEN JOINT CUSTODY AND SOLE CUSTODY?

In joint legal custody, the parents make major decisions about the child together. In sole custody, only one parent has the right to make major decisions. In joint physical custody, the child lives with each parent for an equal time. In sole physical custody, the child lives with one parent more than 50% of the time, and the time the child spends with the other parent (non-custodial parent) is called visitation or parenting time.

WHAT IS AN ORDER OF VISITATION?

Visitation (also called parenting time) is determined the same way as custody. A parent seeking to visit with his/her child may file a petition in the Family Court against the person or persons who have custody of the child if they prevent the parent from seeing the child. The court may order visitation and allow the party who seeks visitation to spend time with the child if it is in the child’s best interests. Parents are entitled to visit with their children unless doing so is harmful to the child. Court orders for visitation may specify days, times, and places the child may be picked up and dropped off. Where the child will spend holidays and vacations may also be stated in the order. Sometimes the court will order that an agency, relative, or other person supervise the visitation if the court believes that is best for the child.  Custody and visitation matters are often heard together in the same hearing, but a visitation petition may also be filed separately. In some circumstances, other family members, such as grandparents, may file a petition seeking visitation.

DO THE PARTIES NEED LAWYERS?

The parties may represent themselves or hire lawyers. A party who cannot afford to hire a lawyer may be assigned one at no cost.

CAN A CUSTODY OR VISITATION ORDER BE CHANGED?

Either party may file a petition to change or modify a custody or visitation order. For the court to change the child’s custody or visitation schedule, the party seeking the change must show the court that circumstances have changed since the earlier order. The court holds a hearing to determine whether the circumstances have changed and whether the requested modification is best for the child.

WHAT HAPPENS IF ONE SIDE FAILS TO OBEY COURT-ORDERED CUSTODY OR VISITATION?

If a court order gives custody or visitation rights to a party and the other party fails to obey the order, the person harmed may file a petition stating that the other party 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 (imposing penalties against that person) for refusing to follow the judge’s orders.

For information on serving legal papers, contact a custody process service call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.