If you’re going through a divorce, or are separating from a relationship where you were gifted with children, you may be wondering how child custody decisions are made in New York. Wondering whether you will be able to see your children as often, especially if you are a father, can be heartbreaking. First of all, we want to let you know how strong you are for putting your children and their wellbeing first and we hope to ease some stress as we answer some questions that may be on your mind.
Child custody and visitation cases are usually heard in front of a judge of the Family Court of New York. It is possible to go to court self-represented, or without an attorney, however, we suggest and so do many other legal professionals, including court officials, to find representation. With the an attorney advocating for your rights and pursuing your interests, the outcome can be a breath of fresh air. The Supreme Court can also handle custody cases when there is a divorce proceeding at the same time as a way to keep all issues together and the judge informed.
Custody can either be physical or legal. Legal custody defines who can make decisions about a child’s wellbeing and upbringing. These include religion, education, etc. and do not include who can give a child a haircut and other smaller decisions. Legal custody can be given to one (full custody) or both (joint custody) parents or even another parent or guardian. It also doesn’t determine where a child will live.
A parent may have sole legal custody but the child may still live with both parents 50 percent of the time. Physical custody is who provides the primary care for the child either fully or part of the time. If a child lives with his mother but has gone to his father’s for the weekend, the child would be in the physical custody of the father until he returns home. Parents can argue about both legal and physical custody separately. Both can be “awarded” by a judge either solely or jointly. If a judge decides to provide more than 50% physical custody to one parent, the other is considered to have visitation.
A child can only be within the legal custody of a parent until he/she is 18 unless otherwise stated by the State, such as for a disability.
A child custody case can take months to reach a settlement. Often judges set court dates further apart in order to provide some time for parents to calm down from any residual heat left from a divorce, etc. In some cases, however, it is considered important for a decision to be made quickly and emergency court dates can be set. Typically, a custody court case follows the same steps.
The first step in a child custody case involves making the decision to file a petition or seek meditation to come to an agreement outside of the courtroom.
If both parents are unable to come to a decision, or if both parents are not equal in their ability to discuss the future of their children, such as one putting the other under duress or pressure, then the mediator will push the case to be petitioned. Anyone can file a petition for custody, not just a parent. When a parent isn’t the one filing the petition, the court will most likely label the case as having “extraordinary circumstances.” In these cases, the judge will look at what is in the best interest of the child.
The best interest of the child means that every decision made by the court is focused on the ultimate goal of ensuring the child or children are raised to adulthood with as much happiness, security, wellbeing, mental health, and other factors necessary for their “best interests.” At times this may not mean the child will live with his or her parents, mother, or whom they may be already residing with (although this is taken into consideration).
The parent or person filing the petition is called the “Petitioner” and the other parent is known as the “Respondent” throughout the entire court proceeding.
Once the court official reviews the petition and ensures all the necessary information is included, they will stamp it will an official seal, make copies, and return two copies to the Petitioner, the original, which is often kept in the case’s records by the attorney, and one to be included in a package to be served on the Respondent. In most cases, the Petitioner isn’t required to be the one to do the service or is even recommended not to. Any adult over the age of 18 can serve legal documents. Once this package is served, a court date is given to both parties by way of mail or a summons to the First Appearance included with the package.
lawyers will often speak back and forth, acting for their clients, to come to an agreement before The First Appearance. During this initial appearance, a judge will review the case, documents including any affidavits, and seek to have both parties come to an agreement. If one has already been made through the lawyers, this is the time for them to speak up.
If no agreement is reached during the allotted time, then the court will set a second court date as well as typically appoint an attorney for the child.This attorney will interview the child, often watch the child within each parent’s home and other familiar situations, to find out where the child is best suited. They will then present their findings to the court.
The parents of a custody case can appear before a judge multiple times before an agreement is reached. The judge will decide if they will set a deadline, such as the 6 months allowed during the issue of “standards and goals”. This is usually provided to the parent where the child already resides. During this time, an interim or temporary order can be made. If the case goes on for too long, often the court will end up providing custody to this parent who has set the norm for the child involved.
If the case goes to trial, the court will consider many factors if parents don’t agree on a plan and the judge will have to decide the custody order to issue. This will happen sooner in cases with extraordinary circumstances. They will often hear the wishes of the child if he or she is older, the wishes of the parents and parties involved, any extenuating circumstances such as abuse (in these cases, they will order an investigation to be made), the financial circumstances of both parents, the parents relationship with and ability to take care of the child, and any other factors to determine the best interest of the child.
Final orders are permanent, however, in many situations, a parent can seek to modify the order even years down the road if circumstances have changed that require the best interests of the child to be reevaluated. This happens in cases where the custodial parent decides to move out of state, etc.