Custody & Visitation
If you want to have a strong relationship with your children after divorce, be a great parent before the divorce. Make it a point to get to know your child. Spend time with him or her. Be involved in all the day-to-day things that make up a child's life, like childcare, school, sports, activities (and don't forget the diapers, the laundry, the carpool). Most important, even if you are separating or divorcing, treat the other parent with respect.
Custody and visitation disputes occur between unmarried parents, same-sex parents, divorcing parents and parents who have already been divorced. In my practice, I try to keep everyone focused on the children. I represent parents by helping them resolve their dispute by suggesting to them the tools they need to interact effectively with one another in the future.
Custody and visitation "battles" are not "won," they are resolved. If custody or visitation is litigated, there are seldom any winners. Unfortunately, about 2 to 3% of these kinds of disputes must be litigated. When this is the case, keep in mind the following points:
- Most judges do not like to decide custody and visitation cases. Why? Because they cannot predict the future and they cannot know you, the other parent, and your family, by conducting a trial. The judge will be making the decision on your child's future with less information than you would give a distant friend.
- Custody and visitation in New York are decided on the basis of the "best interests" standard. Sadly, the most important element --- the effect of the conflict on the children --- is missing. Litigation only intensifies past conflict.
- The judge might decide your custody or visitation trial in a way that is inconsistent with your values. The information given by witnesses may be less than objective. It may be hard to have the child's voice heard without harming him or her.
- No one can predict the outcome of a custody or visitation trial. Even with a "good" result the outcome can hurt future family interactions. Judges sometimes make temporary decisions and ask you to come back later. Either result is less effective for the family than cooperation and agreement in planning your family's future.
To discuss your questions or concerns about child custody or visitation, please contact us to schedule an appointment for a free consultation.
If you would like more information about the law and procedures for child custody and visitation matters, please continue reading.
What is Legal Custody?
Legal custody is the authority to make decisions on behalf of the child, ranging from routine everyday choices of clothes and television programs to major life decisions such as education and medical care.
What is Residential Custody?
Residential custody is the location where the child lives on a day to day basis. In most cases, only one parent has residential custody. In some rare cases, the child’s time is split equally between both parents. This arrangement is called shared residential custody.
What is Joint Custody?
Joint custody means that both parents have equal legal custody of the child, and therefore equal decision making authority. However, the parent who has residential custody generally has the last word when it comes to most normal, day to day parenting decisions.
What is Visitation?
Visitation is the time that a parent who does not have residential custody spends with his or her child. It is also known as parenting time. Courts try to provide parents with as much visitation and contact with their children as is reasonable and appropriate under the circumstances. However, Courts always encourage parents to make their own scheduling and visitation decisions because parents generally are the most knowledgeable and informed about the unique needs and requirements of their child’s life and environment.
How Does the Court Decide Questions of Custody and Visitation?
The Courts in New York determine very question of custody and visitation using what is known as the "best interests of the child" standard. Under this standard, the Court considers every relevant fact and circumstance in making a decision. Here is a partial list of what a Court would consider in any custody or visitation dispute:
- fitness of parents
- character and reputation of the parties
- desire of parents to be custodians or to visit and any agreements (even oral) between them
- potential for maintaining natural family relations with extended family
- preference of the child - when the child is old enough to be capable of forming a rational judgment
- material opportunities affecting the future life of the child
- age, health and sex of the child
- residences of the parents and the opportunities for visitation
- length of the parents' separation
- whether there was a prior voluntary abandonment of surrender of custody of the child
What Happens if I want to Change My Custody or Visitation Order?
Custody and visitation orders and decisions are never truly final. The court always retains the authority to act in the best interests of the child. However, once a decision has been made, whether by agreement between the parents or by court order, to change that arrangement, the person seeking to change the arrangement must make a request to modify the Court’s order.
To do so, the parent must show a substantial change in circumstances. If there is no substantial change in circumstances, the request is denied. If there is a substantial change in circumstances, the Court applies the “best interest of the child” standard just as if it were making any other child custody or visitation decision.