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Child Custody

Child Custody in New York

What is Child Custody in New York

Child custody is a legal expression referring to a parent's legal authority to direct a child's upbringing after a divorce in New York. It is essential to establish child custody when parties who share a child no longer wish to continue living together. A child custody agreement or a New York custody order assigns responsibilities for a child's care and how the child's upbringing will be conducted by one or both parents of the child or someone else.

Note that when a divorce action begins in court, the court first determines temporary custody. This arrangement which details who has custody of the child, will be maintained throughout the divorce proceedings. At the end of proceedings, the court will approve a permanent custody order.

Child Custody Laws in New York

New York child custody laws are contained in Article 5 and Article 5A of the Domestic Relations Law. In establishing the state's child custody laws, New York adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) drafted in 1997 by the National Conference of Commissioners on Uniform State Laws (NCCUSL).

Per New York child custody laws, state courts will weigh in on a child custody matter if the parents of the child cannot agree on custody issues. If the parents agree on custodial arrangements by themselves, New York child custody laws require that the agreement be put in writing and presented for review by a judge. The agreement only becomes binding on both divorcing parties if the judge signs off on it. If both parents cannot agree on the custodial arrangement, custody may be determined through a family court or as part of a divorce petition filed in the Supreme Court.

According to New York child custody laws, if a state court issues an order on child custody, it may only be enforced until the child turns 18. Also, a petition for child custody cannot be filed until the child has resided for at least 6 months in New York State. If no court order is issued per child custody, both parents have equal rights to legal and physical custody of the child. Asides from biological parents, legal parents and persons with significant relationships with a child can petition for child custody. Persons considered to have a significant relationship with a child include grandparents, siblings, and other family members.

Custody laws in New York previously presupposed that the mother should have custody and be the preferred choice as a custodial parent. The laws have since changed as neither parent has a higher chance of gaining custody, implying that a father may get custody. Under child custody laws in New York, both parents can be awarded joint or sole custody rights over a child. Child custody matters are determined on a case-by-case basis. Custody may be determined whether there has been a divorce or when the parents are not married but have had a child together. Whether or not a marriage occurred is irrelevant in determining where the child should reside.

In New York, the primary consideration is the child's best interests when determining which parent gets physical custody. The court will consider the following details in relation to the child's best interests:

  • Where the child has primarily resided
  • The length of period that the child has lived with either parent
  • Whether the child has unique needs that only one of the parents is better suited to handle or manage
  • Whether there have been occurrences of domestic violence in the family
  • Whether the child has any siblings. New York courts prefer to keep siblings together in most cases.
  • Whether the child's intellectual and emotional growth is better managed by one of the parents
  • Whether either parent will allow the child to cultivate a good relationship with the other parent
  • Whether parental alienation exists (when one parent turns the child against the other parent).
  • If the child is above 12, which parent the child prefers to live with
  • Whether one parent is a better parent than the other
  • Whether either parent has a drug or alcohol problem
  • Which parent is better able to provide food, housing, medical care, and education for the child
  • Each parent's home environment
  • Which parent the child has formed the closer relationship with
  • Whether a custody order or an informal custody arrangement exists
  • Work schedules of the parents
  • Whether a parent will be able to encourage and educate their child's religious views and upbringing.
  • Whether a parent's home is devoid of domestic partners.
  • Each parent's emotional and physical health, as well as their stability

Note that in accordance with New York child custody laws, child custody may be changed if there is a notable change in the circumstances around the child.

Types of Child Custody in New York

When parents or a court decide custody, they must consider both physical and legal custody rights. Within the boundaries of physical and legal custody, parents may be granted joint or sole custody of the children in the marriages.

Physical Custody

In a divorce action or a child custody case, physical custody is a term used to describe the rights of the parent with which a child lives. A parent with primary physical custody of the child (also known as full custody) lives with the child. Physical custody may be shared between parents (referred to as joint physical custody), or one parent may have sole physical custody rights.

Joint or shared physical custody is a term that refers to when parents share physical custody of the child 50/50 or reasonably evenly. Where a parent has more than 50% of the child's custodial time, that parent is considered to have sole physical custody, which confers some decision-making power on that parent in the absence of a custodial agreement, and certain tax credits in some situations. Sole physical custody indicates that one parent has physical custody of the child, while the other parent has no custody time with the child or limited time spent with the child. Typically, the noncustodial party is afforded visitation rights in sole physical custody.

Visitation, also called parenting time, means that the noncustodial parents may spend time with the child or visit the child unless there is good cause for the noncustodial parent not to meet with the child. Note that visitation and custody are separate matters before the court but are usually decided in the same hearing. The court will grant visitation if it is in the child's best interest. The court may also grant visitation rights to the child's grandparents or siblings. Even when a child has been put in foster care, a parent can still obtain visitation rights unless parental rights have been terminated.

Legal Custody

A parent who has "legal custody" of a child has the authority to make significant educational, medical, religious, or legal choices on the child's behalf. In most circumstances, sharing legal custody is in the child's best interests. In a case where one parent has a history of domestic violence or abuse or the parents have a volatile relationship, a formal custody agreement between both parents may be impractical. In determining legal custody, your family's specific circumstances will dictate the sort of arrangement that is most appropriate in your case.

In joint legal custody, the child's parents must agree on all significant decisions related to the child, including medical, educational, religious, and extracurricular activities. For a parent awarded sole legal custody rights, such parent has sole decision-making authority on religion, educational, medical, and other matters pertaining to the child.

How to File for Child Custody in New York

You can file for child custody in New York by following these steps:

Determine your court and case type: The kind of petition and the court in which you file your child custody petition is determined by the facts of your case. In general, if the parents are married and filing for a divorce in New York, one or both parents will apply for custody as part of the divorce case. If the parents have divorced, the parent who does not have custody may file a petition to change the custody order if there has been a material change in circumstances after the order was made. Depending on how the divorce decree is drafted, you may be required to file your petition in a New York state supreme court or family court. If both parents were never married or are married but have not begun divorce proceedings, any parent may petition the family court for custody.

Complete your forms: If your case is in the family court, complete General Form-17 to petition the court for custody or visitation for the first time. You may refer to the New York Family Court Act to determine which article applies to your case. In completing the form, you will be required to state where the child resides, your relationship to the respondent (the other parent or whomever your petition is against), and any active orders issued against the respondent. If both parents have an agreement on a parenting plan, attach the plan to this form.

You may request a temporary order of protection through the child custody petition. You should include any allegations of criminal offense and attach photos or other evidence that may strengthen your case for a temporary custody order. You may review the New York Family Offense Petition for more information on what the state considers a criminal family offense. If you are worried about disclosing your address or any identifying information that would put you or your child's safety or health at risk, complete the Address Confidentiality Affidavit.

If your case is in the supreme court, first file the index number application and then a Summons with Notice or Summons and Complaint. A Sworn Statement of Removal of Barriers to Remarriage is required for persons married in religious ceremonies. You must also complete the Notice Concerning Continuation of Health Care Coverage and the Notice of Automatic Orders.

Finalize your paperwork: Make two copies of all documents and sign affidavits in front of a notary.

Turn in your paperwork: File your papers with the court clerk. The court clerk will stamp your documents with a file number, keep one copy of all papers, and return the other paperwork to you. If you file your petition in the family court, no filing costs will be required.

Serve the other parent: Serving the other party refers to notifying the other parent that you have opened a case. The server must deliver copies of the paperwork to the other parent. The server must also complete an Affidavit of Service, sign it before a notary, and file it with the court. The affidavit serves as proof that the other party received notice of the case. If a non-parent petitions for child custody, both parents must be served with the petition. The summons will inform both parties of the date and location of the custody hearing in family court.

Note that some New York courts allow petitioners to file their petitions electronically. Check the list of e-filing counties to determine if your county uses an e-filing system.

How to Get Full Custody of a Child in New York Without Going to Court

You may be able to get full custody in New York without going to court if you can agree with the other parent that it would be in the child's best interest for you to have full custody. If both parents reach an agreement for one of the divorcing parents to have full custody, then the agreement must be put in a written statement and filed with the court for approval. Note that the judge will verify that the agreement is in the child's best interest before signing off on it.

If both divorcing parties have difficulty reaching an agreement about child custody, the parents may consider mediation. After arraignment - the first appearance in court, the judge may ask both divorcing parties to consider having their child custody issues handled through mediation. Mediation, also called Alternative Dispute Resolution (ADR), involves divorcing parties meeting with professionals trained in helping parties come to custodial agreements without formal court processes. By using a mediator, both divorcing parents may be able to agree to allow one party to have full custody of the child.

How Long Does a Child Custody Case Take in New York?

The length of a child custody case in New York depends on several factors, including the complexity of the case, the court's case volume, and the number of witnesses that may be called during proceedings. Hence, it may last several weeks to a few months. Note that if a child is at risk of being harmed or removed from the state within a few days, a parent may request an expedited hearing to determine if emergency temporary orders are necessary. Temporary custody orders are also called ex parte orders. Such orders, if granted, may be obtained in a few hours.

The processes involved in a child custody case include:

  • Filing of the petition
  • Emergency child custody or visitation petitions
  • Arraignment or initial appearance
  • Discovery
  • Pretrial conference
  • Trial
  • Lincoln hearing

Child Custody Evaluations (Or Assessment) in New York

In child custody cases, child custody evaluations, also called forensic custodial evaluations, are assessments undertaken by specialists (including clinical psychologists, child psychiatrists, clinical social workers, marriage and family counselors, or licensed clinical professional counselors) to decide what is in the best interest of the child. Many of the specialists involved in child custody evaluations have had specialized training from sources such as the American Psychological Association (APA), Association for Family and Conciliation Courts (AFCC), and the American College of Forensic Psychologists (ACFP).

The evaluations may be sought by a parent, advised by an attorney for the child, or ordered on the judge's own initiative. While the duration and scope of child custodial evaluations vary, the ultimate result is the same - a confidential report to the court that contains an official recommendation. Typically, child custodial evaluations are ordered prior to child custody trial as judges request assessments to elicit information that will help in their final judgments.

Parental conflict is the most often cited reason for child custodial assessments. Conflict often manifests itself via claims made by divorcing parents against each other or during discovery, during which the child's attorney interviews the divorcing parents and the child. Other reasons why child custody evaluations are ordered include mental illness, substance abuse, domestic violence, questionable parenting, a child's unique needs, and a parent's moving of a child out of the state.

New York child custody assessments are governed by the Guidelines for Child Custody Evaluations published by the state Office of the Professions. Per the guidelines, the child's best psychological interests must be of the utmost concern to evaluators. The guidelines also prohibit a psychologist carrying out a child custody assessment from having multiple roles with the parents or child. This helps guarantee that the assessment is objective and fair and does not necessarily represent the intended outcome of the person requesting the evaluation.

While conducting child custody assessments, the evaluator is permitted to use multiple strategies to assess the custody issue. Such strategies or methods include:

  • Interviews with parents and the child
  • Making home visits
  • Carrying out psychological tests
  • Interviews with persons who know the family
  • Assessing records such as police records and school files

Choosing a Child Custody Lawyer in New York

Choosing a qualified child custody attorney may be challenging, especially given the many sensitive issues that arise during child custody cases. The prospect of fighting for the ability to live with and visit your child may be daunting, but hiring a qualified child custody lawyer can make all the difference. Child custody lawyers are family law attorneys with special expertise in custody matters. A parent looking to hire a child custody attorney may follow these steps in making a decision:

Seek out a specialist: You should use local listings to assist you in locating legal firms and attorneys who specialize in child custody and family law. Child custody proceedings are a particularly specialized sort of judicial action. With your child's future at risk, you want to be certain that the attorney you choose has substantial experience in the subject of family law. A simple online search for a child custody family attorney in New York is likely to return a list of skilled professionals.

Do your own research: Once you have compiled a list of child custody lawyers, do a short research on each firm or attorney. Assess internet reviews and any other feedback from previous customers. You will want to choose an attorney who has handled cases in your local family court and is acquainted with the judges in the area. Use your research to restrict your list of prospective attorneys to a few of the top firms.

Set up meetings: Once you have pruned your list of possible attorneys, contact each firm or counsel to arrange an appointment to discuss your case. Prepare a list of important questions about your child custody case prior to the meetings. Ask questions about what to expect in the court, attorney costs, upfront costs, if any, and any other issues you need clarifications on. Take notes throughout your meetings so that you can compare attorneys after all of your sessions are complete.

Make your decision: After interviewing multiple child custody attorneys, go through your notes from each appointment and compare your likes and dislikes for each firm or attorney. Consider the associated costs and fees and choose the one that is the best match for your needs and budget. Note that a child custody case can be a serious legal battle with long-term consequences for you and your child. Ensure that you choose the best legal representation possible.

Do I Have the Right to Know Where My Child is During Visitation?

Since New York custody orders are determined on a case-by-case basis, the right to know where your child is during visitation is dependent on the terms of the custody order issued in court.

If you were able to reach an amicable custodial arrangement without going to court, the arrangement may include terms that allow you to know the whereabouts of your child during visitations. Otherwise, if a custody order does not specify that the other parent must disclose the child's whereabouts during visitations, the parent is not obliged to inform you about the child's location.

However, you can modify an existing parenting plan to determine a child's whereabouts during visitations by agreeing with your ex or asking the court to modify the custody order if one parent does not want to include it. A parenting plan is a formal agreement between divorcing parents that specifies each parent's role in raising the child shared between the parents. The plan may be created by the court, the parents, or the parents' attorneys and must be signed by both parents and approved by the court.

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