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.

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