Doctors save lives. Divorce lawyers and family attorneys save everything else. – Val Kleyman, Esq.
Doctors save lives. Divorce lawyers and family attorneys save everything else. – Val Kleyman, Esq.
Custody can be established by agreement between the parents but, where parents disagree with each other about which of them should have custody of their child, judges face some of the most sensitive and difficult cases that can be brought before a court. Custody disputes need to be resolved with the highest degree of professionalism and care. To find the best child custody lawyers for you, look for lawyers who can understand your child’s unique needs. The needs of each child vary and having a professional who will truly have your child’s best interests in mind will help great deal.
Top rated child custody lawyers know that custody battles are decided on the basis of individual circumstances. While litigation over custody can be a very difficult process, it is important to protect your rights and the well being of your child. Our child custody lawyers have more than 40 years of combined courtroom experience presenting these cases. We understand the importance of paying attention to each child’s unique situation in order to present our clients’ custody cases effectively.
Parents do not have a presumptive right to custody of their own children in New York. [D.R.L. Sec. 70] Custody is never viewed through the lens of parental rights in New York. Instead, the welfare of the child is the primary focus of the state’s concern, and parents are awarded custody according to their abilities to provide for that individual child’s needs.
Generally, parents may work out their own arrangements regarding the custody of their own children by simply agreeing between themselves. It is still important that they have these agreements written by an experienced family court attorney. If not, their agreement may be unenforceable later.
In cases where parents disagree over the custody of their child or children, either parent may ask the court to decide the issue for them. For unmarried parents, custody disputes are decided in the family court; for divorcing parents, custody disputes are decided in the state supreme court. Each of these custody trials must be decided according to its own unique set of facts, and generalities will not be applied.
“Uncontested” cases refer to those where the parties have reached an agreement on how custody of their children should be assigned. “Contested” cases are ones where the parties argue against each other in court and let the judge decides who gets custody of the children.
These judges will always seek the arrangement that is “in the best interests of the children after a consideration of all of the circumstances. Therefore, contested custody cases are necessarily fact-intensive. The best custody lawyers in New York will be careful to take the time needed to understand your family’s circumstances in detail.
Custody is not a “winner take all” proposition. It is only a minority of cases where one parent obtains sole custody to the total exclusion of the other. More commonly, one parent is awarded primary custody and the non-custodial parent is awarded significant time with the child.
Many custody arrangements will use the terms “parenting time,” “time-sharing,” or “areas of parental responsibility” instead of the word “custody,” in order to delineate the specific areas of participation being exercised by each of the parties regarding the children.
Other custody arrangements simply specify the non-custodial parent is awarded a “visitation” schedule which defines that party’s regular parenting times. The most restrictive form of participation by the non-custodial parent is “supervised visitation,” which allows a parent to spend time with the children only while being monitored by a specific adult, family member or child care professional.
In some cases, it is even possible for parents to share custody equally, with each parent caring for the children 50% of time. However, this is not the norm. Equally shared custody can only be done in cases where the parties agree.
The reason for this is because, in cases where parents have to litigate the issue, the mere fact that custody is being argued is an indication of the parents’ inability to co-parent. Decisional law prohibits the courts from granting joint custody to “warring” parents.
Statistically, women still obtain the majority of primary custody awards in New York. However, the historical trend shows that an increasing percentage of men now obtain custody. [New York State Bar Association Manual on Matrimonial Law, DaSilva, 2015]
In choosing one parent over the other, a court may consider “any factor that may help the court to decide the child’s best interests.”
Included among the many factors to be considered in making a custody determination, “domestic violence” involving either party is one that courts are required to consider. [D.R.L. Sec. 240(1)] The State of New York defines “domestic violence” as: “A pattern of coercive tactics, which can include physical, psychological, sexual, economic and emotional abuse, perpetrated by one person against an adult intimate partner, with the goal of establishing and maintaining power and control over the victim. [New York State Unified Court System]
Some of the other factors that courts take into consideration are: the child’s age, health, and special needs; the capability of each parent to care for the child; the history of care provided by a parent for the child; health and physical condition of each parent; the home environment that each parent has or provided or will provide to the child; educational needs of the child and the ability of each parent to meet those needs; the existence or absence of extended family members; either parent’s interference with the relationship between the child and the other parent; religion; the preference of the child if the child is old enough; any child abuse by either parent; the effect of separating siblings from each other; either parent’s previous agreement; the relative nurturing ability of each parent; the length of time the child has resided with either parent; and the child’s need for stability.
Judges will, in most cases, appoint a third, separate attorney to represent the children. Ordinarily, a parent speaks for children. However, when both parents disagree about the best interest of the children, neither parent can speak for the children. That is why the courts appoint a separate spokesperson for the children and, in some cases, a separate attorney for each one of the children.
Because custody decisions require detailed personal information, psychological evaluations of the parties and children by a mental health professional may also be required by the court. The psychologist may interview the parties and their witnesses. The psychologist may also administer written testing to the parties, observe the interactions among the parties, and visit the children’s home.
Each party has the right to call witnesses, such as the child’s teachers, neighbors, or relatives. Sometimes, a party will call a professional such as a doctor, therapist, or educational adviser. It is not uncommon for a party to hire a private investigator, or to subpoena records from social media.
Custody cases can involve many expert witnesses and can last anywhere from a few months to a few years. For these reasons, they typically end up costing more than other, familiar types of litigation.
Each parent pays her or his own expert witnesses. Each parent pays her or his own attorney.
The payment to the child’s attorney for her or his services is usually charged to the parents as well. It may be assigned entirely to be paid by the parent with the greater resources, or it may be divided between the parents in proportion to their resources.
The parties will pay for the mental health experts as the court may direct. All these additional professionals will contribute to the court’s knowledge about the child but, at the same time, can drive up the cost of these cases by many thousands of dollars.
Even after custody and visitation have been decided — regardless of whether that was done by agreement or by litigation — it may still be possible to ask the court to change its decision later.
If a party can show (1) that circumstances have changed since the court made its original decision and (2) that the change was not foreseeable at the time when the court made its original decision, then that party is permitted bring a petition for a change of custody.
Relocation is one of the reasons for asking the court to reconsider its previous decision regarding custody. Relocation cases are a distinct subset of custody disputes. When people want to move a substantial distance from home, they expect to take their children with them, even if it interferes with the non-custodial parent’s ability to spend time with those children.
A court cannot tell a parent where he or she must live. It can, however, tell a parent not to take the children with them if the other parent claims the move is not in the best interests of the children. Then, the parent who wishes to move the children must seek permission from the court by showing that the move would be in the best interests of the children.
Some of the “legitimate” reasons compelling people to relocate the children are: remarriage, employment opportunity, educational advantages, health, and the need to be close to extended family. These reasons may persuade a court to change its previous custody decision. There are also “frivolous” reasons, such as the desire to prevent the non-custodial parent from seeing the child, and New York divorce courts will not allow the relocating parent to move the child for those reasons.
The controlling case now followed by New York courts in determining relocation cases is Tropea v. Tropea, 87 N.Y.2d 727 (1996). Essentially, it re-iterates that the criteria for deciding these cases, like any other cases, is the best interest of the child based on all pertinent factors. Prior to that decision in 1996, courts used a different, stricter test to determine relocation cases.
Courts used to require application of a two-pronged test to relocation requests. First, the relocation had to be for a necessary and legitimate reason and second, even if it passed the first test, courts would still deny permission to relocate the child if the relocation would interfere with the relationship between the child and the non-custodial parent.
While those two factors are no longer dispositive, they continue to be significant in determining the best interest of the child.
In New York, grandparents have the right to petition the court for visitation or custody of their grandchildren only if they have “standing.” A grandparent has standing if (1) either or both of the child’s parents are deceased, or (2) other extraordinary circumstances justify the court’s decision to intervene and hear the matter. [NY DRL § 72]
Extraordinary circumstances might include a parent’s abandonment of the child or physical or mental unfitness as a parent. The most common example of “extraordinary circumstances” is an “extended disruption of custody,” which is defined by statute. It means that a parent voluntarily relinquished care of the child to the grandparent and, as a result, the parent has been separated from his or her child for a period of at least twenty-four continuous months, during which time the child resided in the household of the grandparent.
Establishing that both parents are deceased, or that extraordinary circumstances exist, means only that a grandparent has the right to apply for custody. It does not necessarily mean the court has to grant the application. After a grandparent shows “standing” to proceed, the court will apply the “best interest of the child” test.
The first step is for the court to notify the parent or the person with custody of the child that a court case exists. Then, the grandparents have the burden of proving that visitation would be in the child’s best interests. The court will consider such factors as the child’s wishes, the child’s prior relationship with the grandparents, the reasons why the parent opposes visitation.
Courts are constitutionally required to give special weight to a fit parent’s decisions about raising a child. So, if the custodial parent is opposed to visitation by a grandparent, it is unlikely that the grandparent’s claim would succeed. Of course, nothing in the law prevents a parent from making a voluntary agreement to give custody of their child to a grandparent.
WE ARE READY TO HELP YOU WITH CHILD CUSTODY
Figuring out which parent will have custody of children in New York is a difficult process. You may feel unsure what your rights are and how the law will apply to your specific situation. Our NYC child custody attorneys are ready to take your hand and guide you through the process of establishing custody and protecting your rights.