Custody/Visitation

CHILD CUSTODY AND VISITATION IN NEW YORK

By: Akanksha A. Panicker

[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.

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

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.

Things to Think About Before You Represent Yourself in Court

The court system can be confusing and it is a good idea to get a lawyer if you can. The law, the proofs necessary to present your case, and the procedural rules governing cases in the Law Division, Civil Part are complex. Since valuable claims or potentially heavy judgments may be at stake, most litigants appearing in the Law Division, Civil Part has a lawyer. If you are being sued, please contact your insurance company to see if they might provide a lawyer for you. Most likely your opponent will be represented by a lawyer. It is recommended that you make every effort to obtain the assistance of a lawyer. If you cannot afford a lawyer, you may contact the legal services program in your county to see if you qualify for free legal services. The telephone number can be found online or in your local yellow pages under “Legal Aid” or “Legal Services.”

DOES THE COURTS HAVE A BIAS AGAINST HOMOSEXUAL RELATIONSHIPS IN DETERMINING 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 impact 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 to be a significant factor unless specific harm to the child is shown.  Continue reading

CHILD CUSTODY -IS THERE A PREFERENCE FOR MOTHERS OVER FATHERS?

Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody. 

There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent. 

In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother is fit. 

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. 

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), that by itself 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 custodial parent’s expenses for the child have not been reduced by the joint custody arrangement. 

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, it is possible neither parent will have to pay support to the other. The father and mother will pay the child’s day-to-day expenses when the child is in their respective homes. The parents, however, will need to coordinate payments on major expenses such as camp, school, clothing, and insurance.