Custody

HOW CHILD CUSTODY IS DETERMINED IN NEW YORK

Undisputed Legal | Custody Process Service

The general test in determining custody in a contest between parents is the child’s best interest and welfare. Court decisions set forth several factors that are to be considered in determining best interests. These factors are as follows:

(1) The parent who has been the primary caretaker;

(2) The need for stability and continuity in the child’s life;

(3) The relative financial ability of each parent;

(4) The quality of the home environment and the parental guidance each

parent provides;

(5) The power of each parent to provide for the child’s emotional and

intellectual development;

(6) The relative fitness of each parent;

(7) The length of time the present custodial arrangement has been

in effect;

(8) The desires of the child.

GUIDELINES FOR CLIENTS IN CUSTODY AND VISITATION CASES

We have found that the outcome of a custody or visitation case depends, in large part, on the preparation which goes into it. In that regard, there are many things which you can do to aid in the preparation of your case.

The following are areas where your preparation can be most helpful:

1) JOURNAL

Your custody or visitation “journal” is a daily record of events that impact your

children’s lives and which reflect upon either parent’s abilities as a caretaker for your children. This journal should be kept daily, both so that you do not forget important events and so that you are not later accused of “erasing” events that may or may not have occurred.

It would help if you listed both the routine and special events on a given day. While routine items (e.g., preparation of a meal) may not seem important at first when viewed as part of a long-term care pattern, they take on great significance. Be as detailed as you like; for example, your description of a meal’s preparation might include a “menu” (to show that your children receive nutritional meals), as well as a description of the children’s roles in setting the table, in fixing the salad or dessert, and in helping clear the table (to show that they are taught a sense of teamwork and responsibility).

Your journal should also include statements that the children make or a description of matters you and the children discuss. These do not need to be matters directly relating to the custody and visitation issues. In most cases, it is not helpful for you to “provoke” discussion in those areas but may include your children’s feelings about you or the other party, as well as their statements about day-to-day occurrences in their lives.

The contents of your journal will likely be used in court should your case go to trial. Oftentimes, it can be utilized to show your contemporaneous recording of events or to refresh your recollection on the witness stand. Because of this, you must be careful what you write. Your journal is obviously not the place for you to chronicle your love life or apologize for any shortcomings you may feel you have as a parent. It should not contain any inappropriate language or comments.

And, while it is o.k. to write about actual events or statements which put the other party in a bad light, be careful not to overdo it. The tone of your journal generally should be positive and a reflection on your good points. It should not be solely a “smear piece” against the other party.

Your journal is one of the most important devices available to assist in your case. For that reason, we encourage you to take the time to make and keep this record.

 2) PHOTOGRAPHS/VIDEOS

The adage “a picture is worth a thousand words” often holds in custody and visitation matters. It is almost always the case that photographs can be used to illustrate some aspect of your care and ability to parent, whether it be to show the Court the physical setting (home, living and sleeping areas, nearby playgrounds, etc.) you provide your children, or the various events and activities which you enjoy with them.

If you do not have a camera, get one. There are good, inexpensive, disposable cameras available almost everywhere. Photograph your home and all its living areas, giving special attention to where the children eat, sleep and play. Please take pictures of the yard, nearby playgrounds or parks, and any other places (e.g., grandparents’ house) where the children spend a substantial amount of their time.

Photograph routine events in the children’s lives (such as getting off the school bus or saying bedtime prayers) to illustrate how their days are spent and your involvement daily. Photograph special events, holidays, trips, and vacations, and be sure to include your children’s friends and extended family (grandparents, aunts, and uncles, cousins) in photos of family gatherings. Do not forget to include yourself in many of these photos.

If any “bad” things appear, such as your children having injuries or bruises, you should (among other things) take a picture. You should also take steps to preserve any photographs or family albums you already have so that a record of your past involvement in the children’s lives can be shown to the Court.

Videos are another means to depict your involvement with the children. ONE WARNING: Since most video recordings also include sound, be careful that you are not heard “directing” your children about. Our purpose in proving your genuine love and care for your children may be undermined if you are perceived to have “staged” certain events.

3) AUDIO RECORDING

An audio recording (i.e., a tape recording) of statements or other events may prove helpful in certain circumstances. For example, if the other parent is often drunk or chronically shouts at the children, a recording of his/her voice may help prove it. Another typical example occurs when parties live apart, and one party uses the telephone to issue vulgarities to the other or act unreasonably in terms of visitation.

Extreme caution must be exercised, however, before audio recording is done. There are two reasons for this: First, certain types of recording (e.g., a telephone “tap” between two unsuspecting people) is illegal and cannot be used for any legitimate purpose; Second, we want to be sure your tape recording does not lead to your “provoking” family conflict or even violence. If it does, and a neutral listener hears the tape, chances are you will not gain from it.

4) RECORDS AND DOCUMENTS

It would help if you began gathering those records and comments to demonstrate your caring for your children. Examples of these include pediatrician’s bills (to

show your attention to health matters), report cards and school correspondence (indicating your involvement with your children’s education), and similar formal documents.

Other examples of items you should provide are “informal” documents such as cards made for you by your children, the artwork was done at school, or anything you feel may give some insight into your children’s care and feelings about things. Indeed, you should not limit yourself to just “documents.” For example, a birdhouse built by your children, and you may help to tell a story to the Court.

5) LETTERS OF REFERENCE

In many cases, it is helpful to have letters from persons familiar with you or your children. These may include neighbors, teachers, babysitters, or anyone else having information that would support your claim. Letters from your parents and family may be beneficial, as may those from your employer.

These letters should explain how the writer knows you or your children and what he/she has observed. The writer may wish to state an opinion about your abilities as a parent or your relationship with your children, which is welcome.

These letters are not “evidence.” Their usefulness is somewhat limited by the strict rules of evidence which the courts must follow. Their purpose is threefold: 1. To provide you with a good idea of what people are likely to say if asked to comment on your situation, 2. To get people “thinking” about your case, and how to help you (oftentimes people will remember helpful facts which would not otherwise have come to mind); and 3.To “lock-in” a person’s comments (someone’s opinion of you is less likely to change at Court if you already have something in writing from them).

6) CUSTODY WORKSHEET

On this same site, please check out the Custody Worksheet.

It asks that you provide information and comments regarding many aspects of your children’s care. It also gives you a rough idea of things that might come up in court or negotiations.

It will help if you begin organizing your comments in the format set out in the Worksheet. You will find that these comments will overlap those made from day to day in your journal in large part. This is fine, but you should also feel free to note any past events or actions which would bear upon the topics listed on the Worksheet. Please consider when preparing your comments whether any photographs or similar means might be available to illustrate your points.

CONCLUSION

These guidelines will get you started on the preparation needed for the best presentation of your case. Please give them your careful attention.

For more information on serving custody papers, contact Undisputed Legal our Custody 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.

DOES RELIGION PLAY A ROLE IN CHILD CUSTODY?

Under the First Amendment to the United States Constitution, both parents have a right to practice religion or not practice religion as they see fit. A judge is not supposed to make value judgments about whether a child is better off with or without religious training or about which religion is better. If a child has been brought up with particular religious beliefs and religious activities are important to the child, a court might favor promoting continuity in the child’s life, but the court should not favor religion per se. 

In some cases, a parent’s unusual or non-mainstream religious activities may become an issue. Normally, a court should not consider a parent’s unusual religious practices in deciding custody or visitation unless specific harm to the child is shown. If, because of a parent’s religious beliefs, a parent has not given the child needed medical care or has tried to convince the child that the other parent is evil and should not be associated with, that could be a basis for placing custody with the parent whose religious conduct does not harm the child. 

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.

COURTS POSITION ON UNDERMINING A CHILDS RELATIONSHIP WITH OTHER PARENT

Most states declare a specific policy favoring an ongoing, healthy relationship between the child and both parents. If one parent is trying to undermine the child’s relationship with the other parent, that is a negative factor against the parent trying to hurt the relationship. If other factors are close to equal, a  court may grant custody to the more likely to encourage an open and good relationship with the other parent.

Similarly, if a custodial parent regularly interferes with visitation, that is a negative factor against the custodial parent and can lead to modification of custody to the noncustodial parent (assuming the noncustodial parent can properly care for the child). 

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.

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.

DOES A CHILD’S PREFERENCE PLAY A ROLE IN CUSTODY

The wishes of a child can be an important factor in deciding custody. The weight a court gives the child’s wishes will depend on the child’s age, maturity, and quality of reasons. Some judges do not even listen to a child’s preferences under the age of seven and instead assume the child is too young to express an ill-formed appreciation. 

A court is more likely to follow an older child’s preferences, although the court will want to assess the quality of the child’s reasons. If a child wants to be with a parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached may not have their preferences followed. 

On the other hand, if a child expresses a good reason related to the child’s best interest-such as genuinely feeling closer to one parent than the other, the court probably will follow the preference. Although most states treat a child’s wishes as only one factor to be considered, two states (Georgia and West Virginia) declare that a child of fourteen has an “absolute right” to choose the parent with whom the child will live, as long as the parent is fit. 

If a judge decides to talk with the child, the judge usually will do so in private, in the judge’s chambers rather than in open court. Generally, the parents are not in the room when the judge talks to the child, although the parents’ attorneys might be. In some cases, the judge may appoint a mental health professional, such as a psychiatrist, psychologist, or social worker, to talk to the child and report to the court. 

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.

FACTORS IN DETERMINING CHILD CUSTODY

No one factor is invariable, “the” most important factor in a custody case. The importance of a particular factor will vary with the facts of each case. If one parent in a custody dispute has a major problem with alcoholism or mental illness or has abused the child, that, of course, could be the deciding factor. 

If neither parent has engaged in appalling conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as the primary caretaker factor. If one parent can show that he or she took care of the child most of the time, that parent usually will be favored for custody, mainly if the child is young (under approximately eight years old). 

This factor promotes continuity in the child’s life and gives custody of the child to the more experienced parent who has taken care of the child’s day-to-day needs. If both parents have actively cared for the child or the child is older, it is less crucial, although it is still considered. 

One state (West Virginia) has taken use of the primary caretaker factor a step further. In West Virginia, a primary caretaker is automatically entitled to custody as long as they are minimally fit. The presumption does not apply if the child is old enough to express an intelligent preference for a parent other than the primary caretaker. In other states, determining which parent is the primary caretaker is an important factor, but it is not the sole deciding factor. 

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.

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 child’s best interest that the child is in his or her custody. 

A few states (mostly in the South) have laws providing that if everything else is equal, the mother may be preferred. Still, in those states, many fathers have successfully obtained 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 hold that it is permissible to consider the child’s age or sex when deciding custody. That usually translates to a preference for mothers if the child is young or female. Again, fathers in those states can gain control, even when the mother is fit. 

Although judges are supposed to be neutral in custody disputes between mothers and fathers, some judges appear biased. An advantage of having an attorney experienced in family law cases is that the attorney may know which judges may be limited and which may not. The attorney may know what types of evidence will appeal to the judge and which classes will not. 

In many jurisdictions, it is possible to obtain a change of judge by asking for it. Such a change often is called a change of venue. Generally, a litigant is entitled to one change of venue without having to present a reason. However, the request must be made before the judge has ruled on substantive issues in the case. If one is faced with a judge one suspects of bias, a change of venue can be useful (although a litigant would want to consider the other judges to whom the case might be transferred and be reasonably sure that the change will not make the situation worse). 

If a case is transferred to a judge who the litigant or the attorney does not like, it will be difficult to obtain a second venue change. Courts do not wish to allow parties to keep bouncing cases between judges. Courts usually are unwilling to order a second change of venue unless there is a clear, specific showing of prejudice by the judge to whom the case has been transferred. If a parent is before a judge who is believed to be biased (and a change of venue cannot be obtained), the parent puts on the most robust case possible and hopes for the best. 

As a group, judges are less biased in deciding custody cases today than in times past, although most observers believe bias still exists. 

Possible prejudice in favor of mothers. Based on their background or personal experience, judges may have a deep-seated belief that mothers can take care of children better than fathers and that fathers have little experience in parenting. Such judges may bring those views to the bench, so a father may have a tough time gaining custody. 

A Louisiana case illustrates the point. The trial judge gave the mother custody, saying, “It is just a physiological fact that girl children should be with their mother if there are no big differences.” Since the trial judge’s bias was clear on the record, the appellate court reversed the decision and ordered that there be further proceedings-without applying improper presumptions based on the sex of the parents. 

In cases in which the trial judge is less explicit about his or her prejudice, it may be more difficult to obtain a reversal if the trial judge was prejudiced. 

Possible prejudice in favor of fathers. As noted in the section on the evolution of custody standards, discrimination based on the sex of the parent is not a one-way street. Sometimes prejudice runs in favor of fathers. 

Some judges tend to favor fathers, mainly if the children are boys automatically. In an Iowa case, for example, a trial judge gave custody of two boys, ages nine and eleven, to the father, saying that the father “will be able to engage in various activities with boys, such as athletic events, fishing, hunting, mechanical training, and other activities boys are interested in.” 

The trouble was that the testimony before the court did not support the judge’s presumption. The record in the case did not show that the boys were interested in hunting or mechanical training or that the father’s skills in those areas were superior to the mother’s. In fact, the mother went fishing with the boys more often than the father did. 

The Iowa Supreme Court reversed and gave custody to the mother, who had been primarily responsible for raising the children. The court said, “The real issue is not the sex of the parent but which parent will do better in raising the children. It logically follows that neither parent has an edge based on the sex of the children either.” 

Another possible prejudice in favor of fathers may be regarded as prejudice against working mothers. In some cases, it appears that judges have looked askance at working mothers, perhaps holding mothers to a higher standard than fathers and viewing a working mother as not serving the best interest of her child. Such judges may also consider a father who shows slightly above-average parenting involvement as “exceptional” and reward him with custody. 

It isn’t easy to assess how widespread this view may be among judges. Some commentators assert that bias against working mothers, especially professional women, maybe a significant factor. Others suggest that a review of appellate court cases does not disclose widespread prejudice against working mothers, although it exists to some degree. If anything, most judges seem to admire a mother (or father) who can simultaneously manage work and raising children. 

A parent’s work schedule normally is not a decisive factor in custody unless there is a major difference in the amount of time each parent can spend with the child. If, after a divorce, one parent will spend much more time with the child than the other parent, that is a factor in favor of the parent with the more flexible schedule. 

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.

Children’s Rights Under The Law

The law defines children as unmarried persons under the age of majority-usually eighteen-who have not left home to support themselves. Children have a right to be supported by their parents. The right of support includes food, shelter, clothing, and medical care. Parents are also obliged to arrange for the education of their children either at school or at home. If parents seek to educate their children at home, the parents usually must prove to the state that they offer a genuine education program at home. Children taught at home may be subject to state testing to ensure that they make satisfactory progress in their education. 

Children also have a right to be educated by the government through high school (assuming the child is not expelled from school for misconduct). Under federal law, children with significant physical or mental handicaps have a right to government-paid special education programs to meet their needs. If a parent believes a child needs a special education program, but the government is not providing one, the parent can appeal the issue through administrative agencies within the school system and the courts if necessary. 

Mature minors (often defined as children over the age of twelve) are allowed to make their own decisions regarding certain medical procedures, even if parents disagree with the child’s choice. For example, in most states, parents do not have absolute veto power over a minor’s decision to use contraceptives or obtain an abortion. In many states, minors can also seek treatment for the venereal disease without the parents’ notification or consent. In some states, a mature minor can seek and obtain short-term mental health treatment or counseling without parental consent. 

If a child receives a large sum of money, such as through inheritance, payment of a damage award for a personal injury, or starring in a television series, the law protects how the money is managed. The law generally requires the appointment of a guardian to manage the child’s finances. 

The guardian could be a parent or someone other than a parent. Sometimes there will be two guardians-one a parent and a non-family member, such as an attorney or a bank officer. Guardians are required to make sure the money is well managed and spent for the child’s best interest. The money cannot be used for the primary benefit of other family members. If a guardian spends the money for the guardian’s own benefit or in some other way mismanages the funds, the guardian can be personally liable for the amount lost. 

To help ensure that the child’s money is properly invested and spent, the court may require that the guardian file periodic accountings with the court, itemizing the child’s assets, explaining how the money has been spent and outlining plans for future expenditures. 

The law allows children to sue, including, for example, for personal injuries suffered in an auto accident or a poorly maintained park. In most instances, the child’s parent or legal guardian must begin the suit in the child’s name. 

Children accused of committing crimes are handled by their state’s juvenile courts, not the regular criminal justice system. (In many states, children accused of serious crimes who are above a certain age, sometimes as low as thirteen-may be tried in court as adults.) Juvenile courts entitle children to only some of the procedural safeguards that adults receive, but juvenile courts have more freedom to deal with juveniles to rehabilitate them. A child on trial as a juvenile, for example, usually does not have a right to a jury trial, but the child generally may not be confined beyond the age of eighteen. 

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.

Neglect And Abuse Laws

Under state laws, it is a criminal offense for parents and legal guardians to fail to meet children’s basic needs, including food, clothing, shelter, medical treatment, and supervision. Such failure constitutes child neglect.

Child abuse laws make it a crime for adults to abuse children in their care. Such adults include parents, legal guardians, other adults in the home, and baby-sitters. Supervising adults may not go beyond reasonable physical punishment. For example, adults who beat children so severely that they require medical treatment have violated these laws. Child abuse laws cover physical abuse and sexual abuse, and emotional abuse, such as subjecting a child to extreme public humiliation.

A person may be guilty of child abuse that they did not personally commit if that person had legal responsibility for the child and failed to protect the child from the abuser.

The law compels a wide range of people who have contact with children to report suspected child abuse or neglect. Such people include doctors, nurses, teachers, and social workers. A person who must report suspected neglect or abuse may face civil or criminal penalties for failure to do so. Relatives and friends who do not have a professional relationship with the child generally do not have a legal duty to report.

States often encourage the reporting of suspected abuse through special hotlines. Most states’ laws encourage persons to make reports of abuse by granting them immunity from defamation suits by the accused parents if they make the report in good faith- meaning the person who made the report genuinely suspected abuse, even if it later turns out that abuse did not occur.

Some states keep central lists of suspected child abuse cases. This helps identify abusers, such as parents who take their children to different hospitals to conceal evidence that they have repeatedly abused their children.

If the state takes a child away from a parent who has abused or neglected the child, the state usually seeks to reunite the family after correcting the problems that led to removal. This, however, is not always possible. If, for example, the parent makes little effort to improve or does not satisfactorily complete parenting skills programs offered by the state, then the state may ask a court to end all parental rights. If this happens, the legal bonds between parents and child are completely and permanently cut. The child then may be adopted by another family.

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.

What factors affect child custody?

The laws relating to custody emphasize the best interest of the children. Both natural and adoptive parents may not ordinarily be denied custody unless there is gross parental unfitness. 

There are numerous factors considered by the court in making custody and visitation determinations. Such factors include age, physical, mental and emotional health of the child or parent, and the quality of the home environment, including continuity, stability and security in the child’s home. Other factors that are considered include the primary caretaker status of a parent (which may not necessarily override other factors), whether a parent has made unfounded allegations of abuse, and the recognition (or lack thereof) of the importance that a child have a relationship with the non-custodial parent (alienation). Custody is not awarded after a child has attained the age of eighteen. (Note, however, that the statutory “cut-off” for child support, absent other agreement of the parents, is twenty-one years of age). When custody is contested, the court may appoint an “attorney for the child” (formerly called a “law guardian”) to represent the child(ren). This person is a lawyer who will interview the children (if age appropriate) and represent the child(ren)’s wishes to the court. If the child is of a young age this person is required to make a recommendation to the court concerning the custody arrangement.