Child custody can be a sensitive topic, especially in a heated divorce or in the aftermath of a bad break-up. Nevertheless, it is important to understand your rights and obligations under the law if you are residing in New York. Below is a general overview of child custody laws in the state of New York.
Types of Child Custody
There are two characteristics of child custody: legal and physical. Legal custody refers to the parents right to make important life decisions about the child including but not limited to: medical care, education, and religious upbringing. The parent who has physical custody – known as the “custodial parent” – is given the right to have the child(ren) live with him or her.
It is possible for the same parent to have both physical and legal custody of the child(ren). Should the court deem the terms not in the best interest of the child, then an alternate arrangement will be imposed. Another situation may be comprised of both parents sharing legal and physical custody of the child(ren). This arrangement is rarely decided by a family law court because, generally, it will find that it is in the best interest of the child to reside with one parent. Should there be multiple children, the court will likely avoid separation. If court intervention is not necessary and the parents can agree on child custody and visitation arrangements, a judge will often approve the agreed upon terms that are submitted to the court.
Factors a NY Court Considers
If both parents are seeking custody, a guardian will be appointed by the court to represent the child(ren)’s interests. This court-appointed guardian, known as an “attorney for the child,” will conduct a thorough investigation, which will often include an interview of all parties involved. Upon the completion of the investigation, the guardian will prepare a report and submit recommendations to the court regarding custody and visitation arrangements.
The legal standard by which a judge must determine child custody matters is known as the “best interest of the child.” Some of the several factors a judge must consider are:
- which parent is capable of providing the most stable home environment;
- with which parent the child is presently residing;
- the current mental and physical health of the parents;
- whether or not there is any history of physical, mental and/or drug abuse by the parents; and
- if the child is old enough to have an opinion and express a preference, with which parent the child wishes to reside.
When Parents are Separated but Still Married
If the couple is still legally married but living separately and child custody is at issue, it is imperative that the custodial parent seeks and obtains a court order granting him or her custody of the child. Should he or she not have such an order, the other parent may legally take the child and leave the county, state or even country. Should this occur, an order granting custody will help get the child back to New York. Should the child reside outside of the state for six months or longer, New York will no longer have jurisdiction over child custody or visitation matters. Should this occur, the dispute must be brought in a court in the state or country in which the child resides.
If the child’s parents are not married, a determination for custody and/or visitation rights should be sought in New York family court. Alternatively, if the parents are married child custody and visitation issues are decided by the New York Supreme Court during a divorce proceeding. Once a divorce is finalized and one or both parents wish to change custody or visitation that has been put in place, this must be requested through family court.
Know Your Visitation Rights
It is important to know that even if you are not the custodial parent – i.e. have physical custody of the child – state law affords you certain visitation rights. For instance, you may seek reasonable or specified visitation rights. It is not uncommon for a court to take the position that it is in the best interest of the child to have regular contact with the non-custodial parent. Should the court determine that contact with this parent may threaten the child’s safety, the court may grant visitation but under strict supervision. Moreover, should a court grant a visitation order, the custodial parent is prohibited from keeping the other parent from visiting the child. This is true even if the non-custodial parent has not paid child support. Furthermore, New York law limits visitation rights to the child’s parents and grandparents.
Custody Attorneys Brooklyn NY
Divorce can be complicated, especially when child custody issues arise. In New York, there are rights and obligations under the law of which you may not be aware. For this reason, if you or someone you know is facing divorce or having any type of child custody issues, contact a knowledgeable child custody attorney in Brooklyn today learn about your rights and responsibilities under the law. The experienced attorneys at the offices of Alatsas Law Firm have guided clients during this process. Schedule your initial consultation by calling (718)-233-2903 or clicking here today.