- Which parent will provide the primary residence for the child;
- Which parent has the ability to make decisions about the child’s medical treatment;
- When and how the parent without custody may interact with the child (visitation); AND
- If joint custody or sole custody is in the best interests of the child.
Summary of Child Support Laws in New York
Child custody laws are focused on the best interests of the child. Many times the court will consider the expressed wishes of the parents and children; however the best interests of the child will be given the highest priority. Often parents will make initial child custody decisions through mutual agreement. If the parents cannot agree, the court will conduct an investigation to determine which parent will have primary physical custody. The court will order an investigation of the parents’ homes and may interview both the parents and the child. Once the investigation is complete, the court will apply the best interests of the child standard in order to determine which parent will have custody.
The court will grant visitation to the non-custodial parent in almost all cases. Visitation is considered to be a drastic remedy and should be granted only when there is substantial evidence that visitation is detrimental to the child’s welfare. The court may put conditions on visitation, such as requiring supervision or preventing overnight visitation.
In rare cases the grandparents will be able to petition for custody or visitation. In order to petition for custody, the grandparents are required to show “extraordinary circumstances”. If the grandparents are seeking visitation, they will be required to show that a parent has died or the parent has been interfering with the grandparent’s relationship with the child.
Courts will modify custody orders only when there has been a change in circumstances and the modification is in the best interests of the child. If a custody order is not complied with, the court may find a sufficient change in circumstances to warrant a change in the order.
Types of Child Custody
There are four types of custody, which may overlap. There are sole custody, joint custody, physical custody, and legal custody.
A parent who has physical custody is the parent with whom the child will live. The parent with physical custody will be responsible for seeing to the child’s daily needs. Legal custody grants the parent the ability to make major decisions for the child, such as medical care and education.
Joint custody means that both parents control the child’s upbringing and share the responsibility. This can be referred to a “Joint legal custody”. Sole custody means that only one of the parents has the authority to make decisions about the child’s upbringing.
Procedure for Obtaining Child Custody in New York
Child custody will generally be decided as part of the divorce decree or through an agreement between the parents. If child custody is sought as a separate legal proceeding, the parent seeking custody should file a petition for custody at Family Court.
The parent filing for custody is given the duty of notifying the other parent that there is a court proceeding. If the parents cannot decide on custody, the court will schedule a trial date and refer the case to the Administration for Child Services for a pre-trial investigation. The court may appoint a Law Guardian to act as counsel for the child.
The case will then go to trial. At trial each parent is allowed to present evidence and call witnesses. At the end of the trial the court will decide which parent will have custody and decide a visitation schedule.
If a custody order is already in place, the parent must petition the family court to modify the custody order.
Visitation Rights for Parents without Custody in New York
Visitation is often granted in this jurisdiction. Courts have stated that visitation should be granted unless there are exceptional circumstances, such as if the visitation is harmful to the child’s welfare. Courts have stated that denial of visitation is a drastic remedy.
The court can impose limitations on visitation where such limitations are in the best interests of the child. Examples of limitations imposed by courts include:
- Requiring counseling to be part of visitation;
- Limiting visitation to once a month;
- Requiring visitation be supervised by a third party (such as in cases where there are allegations of abuse); OR
- In rare cases appointing a third party to coordinate visitation;
If the trial court imposes limitations, these limitations will be upheld on appeal if there is a “sound and substantial basis in the record” for the limitations.
Courts have held that if a custodial parent interferes with visitation, it raises “a strong probability” that the parent is unfit to be the custodial parent.
Child Custody Decisions in New York
In many cases child custody decisions are made by the parties and incorporated into their divorce decree.
If litigation is needed to determine custody, the court will bring together information from many sources in an effort to find a custody arrangement which is in the best interests of the child. In addition to information provided by the parents, the court may (among other things):
- Order studies of the parent’s home;
- Interview the child in private;
- Require psychological evaluations of the parents.
In custody case the rules of evidence may be modified. An example of this is found in Family Court Act § 1046, which can allow the court to give more consideration to hearsay evidence if the evidence is corroborated and the evidence goes to the issue of child abuse or neglect.
Factors in Custody Decisions in New York
The court must consider the best interests of the child when deciding which parent will receive custody of the child. The factors the court may consider in determining the best interests of the child include (but are not limited to):
- A prior agreement between the parents;
- The desires of the child (this may not be given much weight if the child is young or there is evidence that one parent has influenced the opinions of the child against the other parent);
- The third party acquaintances of the parent.
- The ability of the parent to provide financially for the child;
- The ability of the parent to provide a stable home for the child;
- Whether granting custody to a parent would result in a disruption of the life of the child; AND
- The desire to maintain the bond between any siblings.
Modification of Custody Order in New York
In order to request a change in the custody of a child following a court order, the non-custodial parent is required to show-by a preponderance of the evidence-a change in circumstances. This change in circumstances must show that there is a real need to change the custody order so that the best interests of the child can continue to be met.
If a change in circumstances is found, the court will consider if a change of custody is in the child’s best interests.
Courts have found a change in circumstances where:
- A formerly agreeable relationship between the parents breaks down to the extent that joint custody is not viable.;
- An acquaintance of the custodial parent causes physical injury to the child;
- The custodial parent did not monitor whether the child attended school;
- After previously complying with court ordered visitation, the custodial parent prevents the other parent from having visitation with the child; AND
- The parents had relocated to different states since the previous custody order was imposed.
A change in circumstances did not take place where:
- The custodial parent had separated from his second spouse but spouse continued to have a strong relationship with child and a cordial relationship with the custodial parent;
- Allegations were made that the custodial parent was pursuing a relationship with another woman. The woman was assisting the child with his homework and taking the child to and from school.
Noncompliance with Custody Order in New York
A violation of a court order takes place when there is an order with an “unequivocal mandate” in effect, the party knew the terms of the order, and the party did not comply with the terms.
When there is clear and convincing evidence that the violation was done willfully, the court may impose sanctions on the party. Willful violation of an order may be sufficient to show that there has been a change in circumstances. The change in circumstances may give the court reason to examine-and potentially modify-the custody order.
Joint Custody in New York
Courts permit joint custody when the parents are able to set aside their differences and work cooperatively toward the upbringing of the child. The court will look to several things when deciding whether joint custody is feasible, including previous interactions between the parents and their mental and physical health. Joint custody can be awarded in cases where the parents still have disagreements about how to raise the children. In one case the court gave joint custody to the parents with the mother having decision making authority over the child’s education while the father possessed decision making authority over the child’s medical and financial issues.
Joint custody will not be awarded where the parents are hostile to one another and are unable to set aside their negative feelings concerning one another. The court will be reluctant to permit joint custody in cases where, prior to the divorce, one parent has repeatedly overruled the concerns and requests of the other parent.
Parent with Custody Moving Out of State
Prior to a move of any distance, the parent should make a motion to relocate with the appropriate family court. If the parent does not make a motion, the move may be considered as a factor to grant custody to the other parent.
The court will hold a hearing to determine if the move is in the best interests of the child. While the interests of the parents are considered, the interests of the child are primary. Other factors which the court may consider include (but are not limited to):
- The ability to preserve the child’s relationship with the non-custodial parent by changing visitation schedules;
- The impact of the move on the relationship between the child and the non-custodial parent
- The ability of the non-custodial parent to retain some form of visitation; AND
- The degree to which the child’s life will be educationally, economically, and emotionally affected by the move.
Every case must be considered individually and no one factor is conclusive.
Child’s Decision
A child’s expressed wish to live with one parent is not controlling when deciding which parent will be given custody. If the child is old enough, the court will take note of a desire to live with one parent as opposed to the other. The weight the court gives to the child’s preference will depend on the facts of the case. In most cases the preference of the child is given more weight if the child is older.
Grandparent Rights in New York
Under Domestic Relations Law § 72 there are circumstances where grandparents can petition for custody or visitation.
A grandparent may petition for visitation when one or both parents are dead or the court finds that it would be equitable to permit visitation.
Courts have found it equitable to require visitation when either:
- The Grandparents can show a sufficient relationship with the grandchild; OR
- The Grandparents have done all that they could to foster a relationship with the grandchild but the parents have interfered or frustrated the grandparent’s efforts.
The court must determine if it is equitable to permit the grandparents to seek visitation by looking at all the surrounding facts and circumstances.
The grandparent must serve notice of the petition on the remaining parent or guardian of the child. Once a petition has been properly made, the court will hold a hearing. Visitation will be granted only if the visitation is in the best interests of the child.
Domestic Relations Law § 72 states that grandparents may seek custody of minor grandchildren if the grandparents can show that there have been “extraordinary circumstances”. Extraordinary circumstances may include (but are not limited to):
- The minor being separated from his custodial parent for at least 24 consecutive months and the child was living with the grandparents during that time;
- The custodial parent being afflicted with mental illness if the illness impairs the parent’s ability to keep the child safe; OR
- The custodial parent being physically or mentally unable to care for the child.
If extraordinary circumstances exist the grandparents may file for a writ of habeas corpus and provide notice to the parent or guardian of the child. The court will then hold a hearing and grant custody to the grandparents if it is in the best interests of the child.
Enforcement of Child Custody in New York
If a parent fails to comply with a custody order, the other parent may file a petition for violation in family court. The court will hold a hearing on the matter and may modify the custody order or impose sanctions on the parent who is not complying with the order. A sample petition to enforce a court order can be found here:
http://www.nycourts.gov/forms/family...pdfs/GF-41.pdf
A second option available to the parent enforcing the order is to file a petition for a writ of habeas corpus. This method is used primarily when the other parent has taken the child and refuses to return him.
