Posts tagged with "Custody"

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.

There is no standard definition of “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 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

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 information on serving Visitation or Custody papers, contact undisputedlegal.com or (212) 203-8001. Representative are ready to assist you, we serve all legal papers, call now!

FACTORS TO BE CONSIDERED IN DETERMINING CUSTODY OF A CHILD:

By: Undisputed Legal/Family Court Process Service Department

The general test in determining custody in a contest between parents, is the best interest and welfare of the child. Court decisions set forth several factors which 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 home environment and the parental guidance each

parent provides;

(5) The ability 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.

History of the Miranda Rule 

By: Undisputed Legal/Court Service Department

  1. Police questioned arrested person at police station for four hours until he confessed. The court was concerned about psychological coercion. Escobedo v. Illinois, 378 U.S. 478 (1964).
  2. Officers agreed to drop some charges if suspect would confess to kidnaping. Suspect agreed and confessed. He was convicted of kidnapping and rape. Conviction overturned by court. Miranda v. Arizona, 384 U.S. 436 (1966).

Who’s Who’s In New York Family Court

JUDGES: A judge is in charge of the hearing (trial). Judges listen to witnesses, examine evidence, and then decide whether the case has been proven. 

SUPPORT MAGISTRATES: A support magistrate hears support cases (petitions seeking monetary support for a child or spouse) and paternity cases (petitions to declare someone to be the child’s father). 

COURT ATTORNEY REFEREES: Court attorney referees hear and issue orders in custody, visitation, and foster-care cases. 

PETITIONER: A petitioner is the person or agency filing the petition. A petition is a written request to the court to make a decision. 

RESPONDENT: The respondent is the person or agency against whom the petition is filed. 

What You Need To Know About New York Family Court

The Family Court of the State of New York has the authority to decide cases affecting the lives of children and families. The court has a wide range of powers to fit the needs of the people who come before it.

The Family Court Act gives the Family Court power to hear certain types of cases. Each case filed is given its own identifying number, called a “docket number.”

The docket number begins with a letter that identifies the type of case filed:

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 visit www.undisputedlegal.com.  Open Monday – Friday 8am-8pm.  “When you want it done right the first time” contact undisputedlegal.com

FACTORS IN DETERMINING CHILD CUSTODY

There is no one factor that is invariably “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 unusually bad 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, particularly if the child is young (under approximately eight years old). 

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.